1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:01.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.914 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Thangaraj :Petitioner -Vs- Gnanaguru :Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 12.01.2011 passed in Interlocutory Application No.644 of 2010 in Original Suit No.57 of 2010 by the Principal District Munsif Court, Srivilliputtur. For Petitioner:Mr.M.Thirunavukkarasu For Respondent:Mr.G.Marimuthu ORDER The order dated 12.01.2011 passed in Interlocutory Application No.644 of 2010 in Original Suit No.57 of 2010 by the Principal District Munsif Court, Srivilliputtur is being challenged in the present Civil Revision Petition. 2.The respondent herein as plaintiff has instituted Original Suit No.57 of 2010 on the file of the Court below for the reliefs of declaration, perpetual and mandatory injunctions, wherein the present revision petitioner has been shown as sole defendant. During pendency of the same, the present petition has been filed in Interlocutory Application No.644 of 2010 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose mentioned therein. The Court below after considering the rival contentions putforth on either side has dismissed Interlocutory Application No.644 of 2010. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioner/defendant as revision petitioner. 3.Before considering the rival submissions made on either side, the Court has to look into the nature of the reliefs and also juxtaposition of the suit properties and its adjoining properties with reference to the plan filed along with the plaint. In the plaint filed in Original Suit No.57 of 2010, it has been specifically prayed that the suit third schedule is the absolute property of the plaintiff and also to deter the defendant by means of permanent injunction and also to pass a decree of mandatory injunction for directing the defendant to remove electric wires. Along with the plaint, a plan has been annexed with, wherein it has been clearly stated that the third schedule, the disputed property, is situate immediately on the southern side of the second schedule. The fourth schedule of property is situate immediately on the eastern side of second and third schedules. The fourth schedule is the exclusive https://hcservices.ecourts.gov.in/hcservices/ 2 property of the defendant. The second schedule is the exclusive property of the plaintiff. In the instant case, the bone of contention is nothing, but the third schedule, which situates immediately on the southern side of the second schedule. 4.The consistent case of the plaintiff is that the third schedule forms part of the second schedule and in which the defendant is not having any manner of right, title and interest. 5.The present petition has been filed so as to appoint an Advocate Commissioner for the purpose mentioned therein. The Court below has dismissed the same mainly on the ground that the present suit has been instituted for the reliefs of declaration, permanent and mandatory injunctions and it is for the respondent/ plaintiff to prove his case and therefore the revision petitioner/petitioner/defendant need not take much pain by way of filing the present petition for getting appointment of an Advocate Commissioner. 6.The learned counsel appearing for the revision petitioner has contended that the details given in the plan filed along with the plaint are totally erroneous and on the eastern side of fourth schedule, no street is in existence, but in the plaint plan, it has been shown as north-south street, but actually on ground, the alleged north-south street is nothing but a runnel and the same is being used by public as common latrine and further the fourth schedule is having its door towards western side and all those things are suppressed in the plaint plan and under the said circumstances for the purpose of noting down the physical features of the suit properties and also for the purpose of existence of the alleged north-south street immediately on the eastern side of the fourth schedule, the present petition has been field for getting appointment of an Advocate Commissioner, but the Court below without considering the nature of the averments made in the written statement has erroneously dismissed the petition and therefore the dismissal order passed by the Court below is liable to be set aside. 7.Per contra, the learned counsel appearing for the respondent has contended that Original Suit No.57 of 2010 has been instituted for the reliefs of declaration, permanent and mandatory injunctions and it is for the plaintiff to prove his case and under the said circumstances, question of appointment of an Advocate Commissioner does not arise and the Court below has rightly dismissed the present petition and therefore the dismissal order passed by the Court below need not be set aside. 8.For considering the rival submissions made on either side, the Court has to look into the necessary averments made in the plaint as well as in the written statement. In the plaint, it has been specifically stated that the suit third schedule, bone of contention, absolutely belongs to the plaintiff. In the written statement, it has been clearly stated that the third schedule is being used as a pathway so as to reach north-south street, which situates on the western side of the suit second schedule and further the fourth schedule is facing towards https://hcservices.ecourts.gov.in/hcservices/ 3 western side and moreover there is no north-south street as mentioned in the plaint plan immediately on the eastern side of the fourth schedule. Therefore it goes without saying that on the side of the defendant, a rival right has been claimed over the suit third schedule. Since a rival right has been claimed over the suit third schedule by the defendant, the juxtaposition of the fourth schedule and also existence of the alleged north- south lane on the eastern side must be noted down. 9.Of course, it is true that the present suit has been instituted for the reliefs of declaration, perpetual and mandatory injunctions, even though it is for the plaintiff to prove his case, for getting the reliefs sought for therein. But at the same time, in the instant case, a rival right has been claimed by the defendant over the suit third schedule property and in order to establish his right and also for the purpose of noting down the physical features of the fourth schedule and also for the alleged existence of north-south street, which situates immediately on the eastern side of fourth schedule, appointment of an Advocate Commissioner is very much essential. Unless an Advocate Commissioner is appointed for the purpose mentioned in the petition, it is very difficult to give quietus to the parties. Therefore it is needless to say that the order passed by the Court below is totally erroneous and the same is liable to be set aside. 10.In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.644 of 2010 in Original Suit No.57 of 2010 by the Principal District Munsif Court, Srivilliputtur is set aside and the petition filed in Interlocutory Application No.644 of 2010 in Original Suit No.57 of 2010 is allowed without costs and the Principal District Munsif Court, Srivilliputtur is directed to appoint an Advocate Commissioner at the cost of the revision petitioner/ petitioner/defendant. The Principal District Munsif Court, Srivilliputtur is directed to dispose of Original Suit No.57 of 2010 before the end of February, 2012 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (T&P) / TRUE COPY / Sub Assistant Registrar To:The Principal District Munsif, Srivilliputtur. Copy To:The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai. +1CC to Mr.G.Marimuthu, Advocate. SR.No.42487. Smn C.R.P(PD)(MD)No.914 of 2011 and M.P(MD)No.1 of 2011 RP/13.12.2011/3P/4C. 01.12.2011. https://hcservices.ecourts.gov.in/hcservices/