K. Subbiaya and Muthulatha vs Annaselvam and Vijayalekshmi

The Honourable Mr. Justice G. Rajasuria

This Civil Revision Petition has been filed to get set aside the Fair and Decreetal order dated 27.09.2012 made in I.A.No. 964 of 2012 in O.S.No. 625 of 2010 on the file of the learned Principal District Munsif, Nagercoil. Heard the learned Counsel for the petitioners. Despite printing the names of the respondents, no one turned up.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of the Civil Revision Petition would run thus.

The learned Counsel for the revision petitioners would echo the cri de coeur and heart burns of his clients to the effect that I.A.No. 964 of 2012 was filed by the revision petitioners, who happened to the defendants, for appointment of an Advocate Commissioner to visit the suit property and measure the same and note down the physical features; however, the lower Court dismissed the same.

Being aggrieved by and dissatisfied with the same, this Civil Revision Petition has been filed on various grounds.

According to the learned Counsel for the petitioner, the respondents/plaintiffs themselves, in fact, stated that in the event of the lower Court passing an order for appointment of the Advocate Commissioner, he may be directed to note down the physical features as per the Memo of instructions that would be given by the plaintiffs to the Advocate Commissioner; however, the lower Court for no good reason, that the trial has already been commenced, simply dismissed the petition.

The point for consideration is as to whether there is any perversity or illegality in the order of the lower Court in dismissing the application for appointment of the Advocate Commissioner?

The Point:

There is a dispute with regard to pathway. Unless the suit property is measured with the help of a Surveyor and the physical features are noted down, the lower Court cannot grant any effective relief.

Hence, I am of the view that in as much as there is no embargo for the Court in appropriate cases to appoint the Advocate Commissioner, the order passed by the lower Court is set aside and the matter is remitted back to the lower Court for appointment of an Advocate Commissioner to measure and note down the physical features of the suit property with the help of a Surveyor and submit the report with the sketch. Both parties are directed to co-operate with the Advocate Commissioner for carrying out the omission. In the result, this Civil Revision Petition is allowed, in the above terms. Consequently, the connected Miscellaneous Petition is also closed. No costs.