1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09.02.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION (PD)(MD)No.243 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 G.Rajagopal .. Petitioner/Respondent/Plaintiff Vs. M.P.Dinakar .. Respondent/Petitioner/1st Defendant Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 01.12.2010 passed in Interlocutory Application No.637 of 2010 in Original Suit No.193 of 2010 by the District Munsif Court, Kovilpatti. For Petitioner : Mr.V.Ramajegadeesan ORDER The impugned order dated 01.12.2010 passed in Interlocutory Application No.637 of 2010 in Original Suit No.193 of 2010 by the District Munsif Court, Kovilpatti is being challenged in the present Civil Revision Petition. 2. The revision petitioner herein as plaintiff has instituted Original Suit No.193 of 2010 on the file of the Court below praying to pass permanent injunction, wherein the present respondent has been shown as first defendant. During pendency of the same, the present respondent as petitioner has filed the petition in question in Interlocutory Application No.637 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 has allowed the same. Against the order passed by the Court below, the present Civil Revision Petition has been preferred. 3. Considering the nature of the relief sought for in Original Suit No.193 of 2010 and also the nature of the order passed in Interlocutory Application No.637 of 2010, notice need not be sent to the respondent and the present Civil Revision Petition is disposed of on merits at the stage of admission. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The learned counsel appearing for the revision petitioner has repeatedly contended that Original Suit No.193 of 2010 has been instituted for the relief of permanent injunction so as to restrain the defendants to demolish the wall, which has been shown as 'A B' in the plaint plan and the same is nothing, but a common wall and the respondent herein without filing any document of title has filed Interlocutory Application No.637 of 2010 for the purpose of appointing an Advocate Commissioner and the Court below has erroneously allowed the same and therefore the order passed by the Court below is liable to be set aside. 5. For considering the submission made on the side of the revision petitioner, the Court has to look into the relief sought for in the plaint as well as in the petition filed in Interlocutory Application No.637 of 2010. In the plaint, the first relief of permanent injunction has been sought for to the effect that the defendants should not remove the wall, which is in dispute. The second relief sought for in the plaint is to pass a decree of permanent injunction so as to restrain the defendants from removing the said 'A B' wall and also to make encroachment. The present petition has been filed under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose of noting down the physical features of the wall in question. The Court below has appointed an Advocate Commissioner. Against the order passed by the Court below, the present petition has been preferred. 6. The only contention urged on the side of the revision petitioner is that the respondent/petitioner/first defendant without filing any document has filed the petition in question in Interlocutory Application No.637 of 2010 for the relief sought for therein. As stated earlier, Original Suit No.193 of 2010 has been filed only in respect of the wall which has been described as 'A B' in the plaint plan. Considering the fact that Original Suit No.193 of 2010 has been filed only with regard to the wall, which has been described as 'A B' in the plaint plan, it is needless to say that appointment of an Advocate Commissioner for the purpose mentioned in Interlocutory Application No.637 of 2010 would not militate the contention urged on the side of the revision petitioner/plaintiff. In fact, the Court below has appointed an Advocate Commissioner for the purpose of noting down as to whether the said wall is situate in the property which belongs to the third defendant and also to note down its physical features. The specific case of the revision petitioner/ plaintiff is that the said wall is a common wall to his layout. Under the said circumstances, by way of appointing an Advocate Commissioner, the Court can very well collect more particulars with regard to the place in which the wall in question is situate and also its physical features. Therefore the order passed by the Court below by way of appointing an Advocate Commissioner is not erroneous. Under the said circumstances, the present Civil Revision Petition deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 3 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.637 of 2010 in Original Suit No.193 of 2010 by the District Munsif Court, Kovilpatti is confirmed. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Deputy Registrar(Accounts) /True Copy/ Assistant Registrar To The District Munsif Court, Kovilpatti. +1cc to Mr.V.Ramajagadeesan, Advocate, Sr.No.5018 C.R.P(PD)(MD)No.243 of 2011 and M.P(MD)No.1 of 2011 09.02.2011 smn SMA/28.2.2011/3C/3P https://hcservices.ecourts.gov.in/hcservices/