IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11-03-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.No.3602 of 2009 and M.P.No.1 of 2009 1.D.Muthukumar 2.Devakavitha .. Petitioners/Plaintiffs Versus M.Arumugha Reddiar .. Respondent/Defendant PRAYER: Petition filed under Article 227 of the Constitution of India,against the order of the learned District Munsif, Ambattur, dated 10.9.2009, in I.A.No.821 of 2009, in O.S.No.342 of 2008. For Petitioners : Mr.G.Surya Narayanan For Respondent : Mr.V.Manohar O R D E R This Civil Revision Petition has been filed against the order, dated 10.9.2009, made in I.A.No.821 of 2009, in O.S.No.342 of 2008, on the file of the learned District Munsif Court, Ambattur. 2. It has been stated that the plaintiffs had filed the suit, in O.S.No.342 of 2008, on the file of the District Munsif Court, Ambattur, praying for permanent injunction to restrain the defendant from preventing the plaintiffs ingress and egress to their property, through Survey No.151/1A1A1A. It had been claimed that the plaintiffs property could be approached only through the land, in Survey No.151/1A1A1A. 3. The defendant in the suit, who is the petitioner in the interlocutory application, in I.A.No.821 of 2009 had stated that, though there is a 30 feet road in existence between the properties of the plaintiffs and the defendant, as borne out from the revenue and the municipal records, the plaintiffs’ vendor had occupied the said road and had put up a compound wall. Therefore, it is just and necessary for the District Munsif Court, Ambattur, to appoint an advocate commissioner to find out if there is a 30 feet road in existence between the properties of the plaintiffs and the defendant. https://hcservices.ecourts.gov.in/hcservices/ 4. The trial Court had allowed the application, by its order, dated 10.9.2009, and had appointed an advocate commissioner, with the help of the Taluk Surveyor, to inspect the suit property and to find out whether there is a 30 feet road in existence and to submit his report and the plan, on or before 5.10.2009. In such circumstances, the plaintiffs in the suit, who were the respondents in the interlocutory application, in I.A.No.821 of 2009, had filed the present civil revision petition against the order passed by the District Munsif Court, Ambatur, dated 10.9.2009. 5. The learned counsel appearing on behalf of the petitioners had submitted that an advocate commissioner cannot be appointed for local investigation, where the possession of the property sought to be inspected and investigated, is in dispute. He had further stated that in a suit for permanent injunction the factum of possession cannot be ascertained by the advocate commissioner. He had placed reliance on the following decisions in support of his contentions. 1) Chinnathambi and others Vs. Anjalai (2006(5) CTC 494) and 2) Meenakshi Vs. Vennila and another (2008(5) CTC 181) The learned counsel had also stated that the defendant in the suit has to substantiate his claims by letting in oral, as well as documentary evidence. However, he cannot request for the appointment of an advocate commissioner to go on a fact finding mission, for collecting evidence in support of his case. 6. The learned counsel appearing on behalf of the respondent had submitted that the appointment of the advocate commissioner, by the District Munsif Court, Ambattur, by its order, dated 10.9.2009, in I.A.No.821 of 2009, is only to enable the respective parties and the Court concerned to have a first hand knowledge of the property in question, in view of the allegations and counter allegations made on behalf of the parties concerned. Since, the local investigation by the advocate commissioner would facilitate the Court to decide the issues, arising for its decision, more effectively, it would be appropriate for the Court concerned to appoint an advocate commissioner. He had placed reliance on a decision of this Court, made in A.Sulthan V. Mohammed Dasthagir [(2008) 6 MLJ 359], in support of his contentions. 7. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available before this Court and in view of the decision cited above, it is clear that the Court concerned could exercise its discretion in appointing an advocate commissioner, to note the physical features of the property in question, if necessary, with the help of a surveyor. There is no doubt that it would not be open to the advocate commissioner to give his own opinion, with regard to the issues, which had arisen for adjudication before the Court concerned. However, the advocate commissioner may note the physical features of https://hcservices.ecourts.gov.in/hcservices/ the property in question and file a report before the Court concerned, along with the necessary plan or sketch, as directed by the said court. The trial Court could also direct the advocate commissioner to take the assistance of a surveyor, as it has been done in the present case. 8. Therefore, it cannot be said that the appointment of an Advocate Commissioner for noting the physical features of the property in question, by the District Munsif Court, Ambattur, by its order, dated 10.9.2009, is erroneous and illegal. As such, the civil revision petition is devoid of merits. Hence, it is dismissed. No costs. The direction issued by the learned District Munsif, Ambattur, in his order, dated 10.9.2009, directing the Advocate Commissioner, to inspect the property in question, to find out if a 30 feet wide road is in existence, shall stand deleted. However, the other portions of the order would remain, as it is. The Advocate Commissioner shall file a report, along with the necessary measurements and the plan, after conducting the inspection, with the help of the Taluk Surveyor. However, it goes without saying that it would be open to the plaintiffs in the suit, who are the petitioners in the present civil revision petition, to raise objections, if any, against the report, which may be filed by the advocate commissioner, in accordance with law. Consequently, connected miscellaneous petition is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To The District Munsif, Ambattur. + 1 CC to MR.G.Surya Narayanan, Advocate, SR.NO.16365 + 1 CC to MR.V.Manohar, Advocate, SR.NO.16645 C.R.P.No.3602 of 2009 JRG(CO) MS:29/03/2010 https://hcservices.ecourts.gov.in/hcservices/