1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION(MD) No.1267 of 2011 and MISCELLANEOUS PETITION(MD) No.1 of 2011 1.K.Murugesan 2.K.Nataraj (Second petitioner is represented through his power of attorney K.Murugesan) .. Petitioners Vs. K.Muthumanikkam .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 25.02.2011 passed in Interlocutory Application No.47 of 2011 in Original Suit No.298 of 2007 by the District Munsif Court, Melur. For Petitioners : Mr.K.Mahendran ORDER The order dated 25.02.2011 passed in Interlocutory Application No.47 of 2011 in Original Suit No.298 of 2007 by the District Munsif Court, Melur is being challenged in the present Civil Revision Petition. 2. The revision petitioners herein as plaintiffs have instituted Original Suit No.298 of 2007 on the file of the Court below for the reliefs of partition, recovery of possession and perpetual injunction, wherein the present respondent has been shown as sole defendant. During pendency of the same, the plaintiffs as petitioners have filed Interlocutory Application No.47 of 2011 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 all the contentions raised on either side has dismissed the petition. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioners/plaintiffs as revision petitioners. 3. Considering the nature of the reliefs sought for in Original Suit No.298 of 2007 as well as the relief sought for in Interlocutory Application No.47 of 2011 and the order passed therein, notice need not be sent to the respondent and this 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 petitioners has contended that the present petition has been filed under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 on the basis of the available evidence on record and the Court below without considering the evidence available on record has erroneously dismissed the same and therefore the order passed by the Court below is liable to be interfered with. 5. For considering the submissions made on the side of the revision petitioners, the Court has to look into the nature of the reliefs sought for in Original Suit No.298 of 2007. 6. The first and foremost relief sought for is to pass a preliminary decree of partition with regard to suit items 2 to 4. The second relief is to direct the defendant to hand over possession of a part of the suit first item. The third relief is to pass decree of perpetual injunction in respect of the portion of the suit first item, which is in actual possession and enjoyment of the second plaintiff. 7. In fact, this Court has perused the description given to the suit properties. The suit first item is comprised in Survey No.510/38 and also in Door No.4/23. In the plaint, it has not been specifically stated about the portion of the suit first schedule, which is in actual possession and enjoyment of the second plaintiff and also about the portion, which is not in his actual possession and enjoyment and further the present petition has been filed only to note down the movables of the second plaintiff. 8. The present suit has been filed for the reliefs mentioned supra. Considering the nature of the reliefs sought for in the present suit, the relief sought for in the present petition is totally unwarranted and further in the plaint description no distinction is found place with regard to the portion, which is in actual possession and enjoyment of the second plaintiff and also the portion, which is in actual possession and enjoyment of the defendant and therefore viewing from any angle, the relief sought for in the present petition cannot be granted, since it is totally unwarranted. The Court below after considering all the contentions raised on either side has rightly dismissed the petition and 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. 9. 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.47 of 2011 in Original Suit No.298 of 2007 by the District Munsif Court, Melur is confirmed. However the revision petitioners are at liberty to take steps so as to amend the plaint as observed in this order. Consequently, connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar(AS) /True Copy/ Sub-Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 3 To The District Munsif , Melur. +One Cc to M/s.K.Mahendran, Advocate, SR.No.38311 smn rl/3c – 21.11.2011 C.R.P(PD)(MD)No.1267 of 2011 and M.P(MD)No.1 of 2011 04.11.2011 https://hcservices.ecourts.gov.in/hcservices/