1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION (PD)(MD)No.2392 of 2011 and MISCELLANEOUS PETITION (MD) No.1 of 2011 Ayyanar .. Petitioner/Defendant Vs. Rayappan .. Respondent/Plaintiff Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 04.03.2011 passed in Interlocutory Application No.1832 of 2010 in Original Suit No.255 of 2003 by the Additional District Munsif Court, Srivilliputtur. For Petitioner : Mr.M.Ashokkumar ORDER The order dated 04.03.2011 passed in Interlocutory Application No.1832 of 2010 in Original Suit No.255 of 2003 by the Additional District Munsif Court, Srivilliputtur is being challenged in the present Civil Revision Petition. 2. The respondent herein as plaintiff has instituted Original Suit No.255 of 2003 on the file of the Court below for the reliefs of declaration, mandatory and permanent 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.1832 of 2010 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner afresh for the reasons mentioned therein. The Court has dismissed the petition. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioner/defendant as revision petitioner. 3. Considering the nature of the order passed in Interlocutory Application No.1832 of 2010 in Original Suit No.255 of 2003 by the Court below, notice need not be sent to the respondent and this Civil Revision Petition is disposed of on merits at the stage of admission. 4. The learned counsel appearing for the revision petitioner has contended that twice two Advocate Commissioners have been appointed in the present case and the first Commissioner has simply noted down the physical features of the suit properties and filed his report and plan and the second Commissioner has measured the suit properties and its adjoining properties and filed his report and plan, wherein in one place he states that there is an encroachment and in another place he states that there is no encroachment and under the said circumstances a fresh Commissioner to be appointed in the present case and due to that the present petition has been filed, https://hcservices.ecourts.gov.in/hcservices/ 2 but the Court below without considering the nature of the relief sought for in the present petition and also the nature of the works done by the Commissioners, who have been appointed earlier, has erroneously dismissed the present petition and therefore the dismissal order passed by the Court below is liable to be set aside. 5. It is seen from the records that in Original Suit No.255 of 2003, two Advocate Commissioners have been appointed and they performed their duty and filed their reports and plans. The present petition has been filed for getting appointment of an Advocate Commissioner afresh. 6. Considering the fact that already two Commissioners have been appointed earlier and they filed their reports and plans, question of appointment of third Commissioner does not arise and at the most if the second Commissioner has failed to note down certain material facts, the commission warrant issued to him can be reissued. But the revision petitioner has not taken any steps so as to reissue the commission warrant to the second Commissioner. Considering the aforesaid facts, this Court is of the view that the present petition is not factually maintainable and the Court below after considering all the contentions raised on either side has rightly dismissed the same. In view of the foregoing narration of facts, this Court has not found any error in the order passed by the Court below and altogether the present Civil Revision Petition deserves to be dismissed. 7. In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs at the stage of admission and the order passed in Interlocutory Application No.1832 of 2010 in Original Suit No.255 of 2003 by the Additional District Munsif Court, Srivilliputtur is confirmed. However the revision petitioner is at liberty to file a fresh petition for reissuing the commission warrant to the second Commissioner and the Additional District Munsif Court, Srivilliputtur is directed to dispose of the same on the basis of merit. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar(A.S.) /True Copy/ Sub Assistant Registrar To The Additional District Munsif , Srivilliputtur. +1cc to Mr.M.Ashikkumar, Advocate, Sr.No.45410 C.R.P(PD)(MD)No.2392 of 2011 and M.P(MD)No.1 of 2011 21.12.2011 smn/sma/3.1.2012/3c/2p https://hcservices.ecourts.gov.in/hcservices/