IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.09.2008 Coram The Honourable Mr.Justice S.RAJESWARAN C.R.P.(PD) No.2459 of 2008 and M.P.No.1 of 2008 P.Rajendran ... Petitioner Vs. 1.S.Neelayathatchi Ammal by her Power of Attorney Agent S.Gunasekaran 2.M.S.Subbarayan 3.A.R.Jeyaraj 4.R.Nithyanandam 5.R.Sivanandam 6.S.Jagenraj 7.The Sub Registrar, East Coast Road, Neelankarai, Chennai-600 041. ... Respondents This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the Order dated 03.06.2008 made in I.A.No.2542 of 2005 in O.S.No.830 of 2004 on the file of the District Munsif Court, Alandur. For Petitioner : Mr.N.Damodaran For Respondents : Mr.S.D.N.Vimalanathan for R1 & 2 O R D E R This Civil Revision Petition has been filed by the petitioner herein/2nd defendant to set aside the Order dated 03.06.2008 made in I.A.No.2542 of 2005 in O.S.No.830 of 2004 on the file of the District Munsif Court, Alandur. 2. The 2nd defendant in O.S.No.830 of 2004 is the revision petitioner before this Court. The suit in O.S.No.830 of 2004 has been filed by the first respondent herein/plaintiff for permanent injunction restraining the defendants 1 to 6 from in any manner interfering with the plaintiff's peaceful possession and enjoyment of https://hcservices.ecourts.gov.in/hcservices/ the suit property or in any manner trespassing in to the suit property and for permanent injunction restraining the defendants 1 to 6 from in any manner alienating or encumbering the suit property to any third parties and also for a permanent injunction restraining the 7th defendant from in any manner entertaining or registering any documents in respect of the suit property that may be presented by the defendants 1 to 6 for registration. Written statement has been filed by the petitioner herein/2nd defendant and the suit is being contested. Pending suit, an application in I.A.No.2542 of 2004 has been filed by the first respondent herein/plaintiff to appoint an Advocate Commissioner to measure, locate and identify the suit property along with a Taluk Surveyor under Order 26 Rule 9 CPC. The said application was resisted by the petitioner herein/2nd defendant by filing a counter. The trial Court by order dated 03.06.2008 allowed the application. Aggrieved by the same, the above civil revision petition has been filed by the 2nd defendant in the suit. 3. This Court on 25.07.2008 ordered notice and granted interim stay. The first respondent has entered appearance through her counsel. 4. I have heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the first respondent and I have also gone through the documents filed in support of their submissions. 5. The learned counsel appearing for the petitioner/2nd defendant would submit that in a suit filed for permanent injunction, an application filed by the respondent herein/plaintiff for appointment of Advocate Commissioner ought not to have been allowed by the trial Court. Moreover, there is no dispute with regard to the identity of the property in this suit. In support of his contention, the learned counsel appearing for the petitioner relied on a judgment reported in 2006 – 4 – L.W. 516 (1.Chinnathambi, 2)Mani @ Sellammal, 3)Selvaraj Vs. Anjalai) to reiterate that the Advocate Commissioner cannot be appointed to collect evidence. Therefore, according to him, the order passed by the court below is liable to be interfered with by this Court. 6. Per contra, the learned counsel appearing for the first respondent/plaintiff submits that in a suit filed by her for permanent injunction, an application was filed for appointment of Advocate Commissioner as the first respondent alleged that he has purchased the property comprised in survey No.227 part and 228 part measuring 1 Acre 85 cents in Perungudi Village. Whereas it is the case of the petitioner that the suit property is admittedly a vacant site. Therefore, identity of the property itself is in dispute and hence an application was filed by the first respondent herein/plaintiff under Order 26 Rule 9 CPC for appointment of Advocate Commissioner to measure, locate and identify the suit property. The trial Court in due consideration of the fact and circumstances of the case allowed the application holding that it is necessary for the https://hcservices.ecourts.gov.in/hcservices/ issue in hand to appoint an advocate commissioner, which would be more useful, to decide whether the property purchased by the 2nd respondent/2nd defendant is part of the suit property or not. Therefore, the trial Court has rightly allowed the application and it does not warrant any interference by this Court under Article 227 of the Constitution of India. 7. A perusal of the order of the trial Court reveals, that the appointment of Advocate Commissioner is sought for by the plaintiff as the defendants are claiming a portion of the suit property as if they had purchased the same. The contention of the plaintiff is that the alleged property purchased by the defendant is somewhere else and not in the suit property. This was resisted by the defendants by stating that the property purchased by them is within the suit property and there is no dispute with regard to its identity and location. 8. In the light of the above claim and counter claim, it would be appropriate and necessary, if a commissioner inspects the suit property and files a report, which will definitely be useful in deciding the lis between the parties. 9. In my opinion, the order passed by the Court below is liable to be sustained and the civil revision petition does not merit any consideration. Accordingly, the civil revision petition is dismissed. No costs. Consequently, connected M.P.No.1 of 2008 is also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rrg To The District Munsif Court, Alandur. 1 cc To Mr.S.D.N.Vimalanathan, Advocate, SR.54382. 1 cc To Mr.N.Damodaran, Advocate, SR.54033. CRP(PD)No.2459 of 2008 GGK(CO) RVL 25.11.2008 https://hcservices.ecourts.gov.in/hcservices/