S. Palanichamy vs S. Chellappa

Honourable Mr. Justice G. Rajasuria

Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:

The Revision Petitioner herein happened to be the plaintiff who filed the suit for permanent injunction. Now the matter is at the trial stage. At the instance of the defendant, a Commissioner was got appointed to visit the suit property and measure the same with the help of a Surveyor and submit his report with sketch. While so, the plaintiff filed another application in I.A. No. 1166 of 2011 for appointment of a second Commissioner. After hearing both the sides, the lower Court dismissed the application. Being aggrieved by and dissatisfied with the order passed by the Lower Court, the plaintiff has filed the present Civil Revision Petition on various grounds.

Inviting the attention of this Court to the materials on record, the learned counsel for the petitioner would contend that the Lower Court was not right in simply dismissing the application for appointment of second Advocate Commissioner to visit the suit property and measure it with the help of a Surveyor.

A plain reading of the order of the Lower Court would amply make the point clear that earlier, the Advocate Commissioner was appointed to visit the suit property and measure it with the help of a Surveyor and take note of the physical features and submit a report. The Lower Court observed that objection was not filed by the plaintiff as against the report of the Commissioner. Whereas ,the learned counsel for the plaintiff would submit that in fact objection to the report was filed by the plaintiff but that was not taken note of. If that be so, it is not too late even now and the plaintiff could bring to the knowledge of the Lower Court the objection filed by him. Even if it is found that out of oversight objection was not filed, with the leave of the trial Court objection could be filed; such a right is available with the plaintiff and he can make use of it. Trite, the proposition of law is that once an Advocate Commissioner is appointed and he submits a report, without scrapping such report, the question of appointing once again another Commissioner is a well neigh impossibility. Adverting to the aforesaid legal position, the Lower Court dismissed the application warranting no interference in the Revision. As such, with the above observation, the Civil Revision Petition is dismissed. Consequently, M.P. (MD) No. 1 of 2012 is closed. No costs.