1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1820 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Thangam 2.Shunmugaraj .. Petitioners Vs. Joseph (died) 1.Rathnasamy 2.Subbammal 3.Nellai Surya .. Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 06.07.2011 passed in Interlocutory Application No.25 of 2011 in Appeal Suit No.204 of 2005 by the Additional Sub Court, Tirunelveli. For Petitioners : Mr.S.Meenakshi Sundaram For Respondents : Mr.T.Selvan 1 and 2 For Respondent : Mr.S.S.Sundar No.3 ORDER The order dated 06.07.2011 passed in Interlocutory Application No.25 of 2011 in Appeal Suit No.204 of 2005 by the Additional Sub Court, Tirunelveli is being challenged in the present Civil Revision Petition. 2. The revision petitioners herein as plaintiffs have instituted Original Suit No.277 of 2000 on the file of the District Munsif Court, Tirunelveli for the relief of injunction. The trial Court has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiffs as appellants have preferred Appeal Suit No.204 of 2005 on the file of the Court below. During pendency of the same, the relief of declaration has been included in the suit and subsequently the present petition has been filed in Interlocutory Application No.25 of 2011 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to re- issue the commission warrant to the same Commissioner, who has been appointed earlier by the trial Court. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioners/appellants as revision petitioners. 3. The learned counsel appearing for the revision petitioners has repeatedly contended that in Original Suit No.277 of 2000 at the instance of the respondents, an Advocate Commissioner has been appointed so as to identify their property and accordingly their property has been identified and now the present petition has been filed so as to identify the suit properties with reference to documents of title, but the Court below without considering the nature of the relief sought for in the present petition has erroneously dismissed the same and therefore the dismissal order passed by the Court below is liable to be interfered with. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The learned counsel appearing for the third respondent has contended that in the plaint description, three survey numbers have been given without giving proper identification of the suit properties and further no lay-out has been filed and therefore question of re-issuing the commission warrant does not arise and the Court below after considering all the available circumstances, has rightly dismissed Interlocutory Application No.25 of 2011 and therefore the order passed by the Court below is not liable to be interfered with. 5. From the rival representations made on either side, the Court can easily understand that in Original Suit No.277 of 2000, an Advocate Commissioner has been appointed at the instance of the defendants therein for the purpose of identifying their property and accordingly the Advocate Commissioner has identified the property of the defendants with reference to documents of title and also survey records and the present petition has been filed in Interlocutory Application No.25 of 2011 so as to identify the suit properties. 6. As rightly pointed out on the side of the respondents, in the suit properties, three items of survey numbers have been given and separate plot numbers have also been given. The main attack made on the side of the respondents is that the revision petitioners/appellants/ plaintiffs have not filed any lay-out plan. Considering the fact that three survey numbers have been mentioned in the plaint, this Court is of the view that the present petition can be heard at the time of hearing in Appeal Suit No.204 of 2005 and if necessary, the Court below can re-issue the commission warrant to the same Commissioner. With the above observations, the order passed by the Court below is liable to be set aside and the matter is liable to be remitted to the file of the Court below. 7. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.25 of 2011 in Appeal Suit No.204 of 2005 by the Additional Sub Court, Tirunelveli is set aside and the petition filed in Interlocutory Application No.25 of 2011 in Appeal Suit No.204 of 2005 is remitted to the file of the Additional Sub Court, Tirunelveli. The Additional Sub Court, Tirunelveli is directed to hear Appeal Suit No.204 of 2005 along with Interlocutory Application No.25 of 2011 and if necessary the relief sought for in Interlocutory Application No.25 of 2011 can be given. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar To The Additional Subordinate Judge, Tirunelveli. +1cc to M/s.S.S.Sundar, Advocate, Sr.No.42767 +1cc to M/s. S.Meenakshi Sundaram, Advocate, SR.No.42768 smn GH : 20.12.2011 : 2p/4c C.R.P(NPD)(MD)No.1820 of 2011 and M.P(MD)No.1 of 2011 07.12.2011 https://hcservices.ecourts.gov.in/hcservices/