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Judgment
M. Venugopal, J.—The revision petitioners/petitioners/defendants have preferred this Civil Revision Petition as against the order dated
27.06.2008 in I.A. No. 81 of 2008 in O.S. No. 2862 of 1996 passed by the learned II Additional District Munsif, Tiruchirapalli in dismissing the
application filed by the petitioners under Order 26 Rule 9 of CPC praying for an appointment of an Advocate Commissioner to inspect the suit
property including the adjacent properties to the suit property and to note-down the physical features, including the lie and the character of the
property and to file his detail report with measurements and plan.
The trial court while passing orders in I.A. No. 81 of 2008 in O.S. No. 2862 of 1996 has inter alia opined that nearly 12 years have elapsed
from the date of institution of the main suit and therefore, the request of the revision petitioners praying permission for appointment of an Advocate
Commissioner is not to be accepted and that the main suit is ready for the conduct of the trial and resultantly, dismissed the application without
costs.
The learned Counsel for the revision petitioners/defendants urges before this Court that the order of the trial court is against facts and
probabilities of the case and further that the trial court has not taken note of the fact that by allowing the application for appointment of an
Advocate Commissioner for local inspection to the suit property will not any way prejudice the other side and moreover, the observation of the
trial court that the present Interlocutory Application has been filed after lapse of 12 years is untenable and that the revision petitioners have filed the
Interlocutory Application praying for appointment of an Advocate Commissioner only to determine the nature, character and lie of the suit property
to prove whether it is cultivable land or not and these factors have not been appreciated by the trial court in a proper perspective and therefore,
prays for allowing the Civil Revision Petition to prevent an aberration of justice.
Admittedly, a perusal of the plaint indicates that the plaintiffs have sought the relief of permanent injunction as against the defendants, their men,
agents, etc., from in any way interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs No. 2 to 8. The suit is
ready for conduct of the trial. It is not in dispute that the pleadings have been completed and issues have been framed by the trial court.
The main thrust of the argument projected by the revision petitioners is that the suit property earlier has been an agricultural land, but because of
the development of the adjacent lands as house sites, there has been no irrigation source and resultantly, the suit property has become an un-
cultivable one, even long before filing of the suit and as a matter of fact, on the date of filing of the suit, the suit property has become a dry land and
therefore, in order to place the nature and character of the suit property, the physical features, etc., together with the adjacent properties a local
inspection is just and necessary so as to enable the trial court to arrive at a fair and just conclusion in regard to the determination of
controversies/disputes between the parties in a complete and comprehensive manner.
It is to be noted that the power of a court to appoint an Advocate Commissioner is a discretionary one and this discretionary relief cannot be
granted on the basis of a litigant approaching the court without making out a case for appointment of an Advocate Commissioner. Indeed, a court
of law is not to assist a party by means of appointing an Advocate Commissioner when a party he or she can produce/procure the best evidence to
substantiate their case, by adducing oral and documentary evidence, as per law.
On an oral assessment of the facts and circumstances of the case and taking note of the fact that the suit is of the year 1996 and the revision
petitioners cannot indulge in a fishing expedition in regard to the request for appointment of an Advocate Commissioner, this Court is of the
considered view that the controversies/disputes involved in the suit can best be solved by the parties by producing oral and documentary evidence
on their side to substantiate the same and for that purpose the request for appointment of an Advocate Commissioner is only a surplusage and
redundant and further, even without appointment of an Advocate Commissioner, this Court is of the considered view that the parties to the suit can
establish their claim in the manner known to law and resultantly, there is no merit in the Civil Revision Petition and the same is hereby dismissed in
the interest of justice.
Since the suit is of the year 1996 and the same is very much ready for the conduct of the trial, this Court as a matter of prudence and as an
equitable relief, directs the trial court namely, the II Additional District Munsif Court, Tiruchirapalli to dispose of the main suit O.S. No. 2862 of
1996 on its file within a period of three months from the date of receipt of copy of this order, uninfluenced by any of the observations made by this
Court in this revision. In regard to the completion of the trial court proceedings in the suit, the parties are directed to lend their assistance and
cooperation. The trial court is directed to provide adequate opportunities to both parties to put forward their respective case in the manner known
to law.
In the result, the Civil Revision Petition is hereby dismissed. Resultantly, the order passed by the trial court is confirmed for the reasons assigned
by this Court in this revision. Having regard to the facts and circumstances of the case, there shall be no order as to costs in this revision petition.