The appointment of a new commission in a property dispute case should be carefully considered, especially when the same property is the subject matter of connected suits pending before the same court.

The above Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure praying to set aside the fair and decretal order dated 21.3.2003 made in I.A.No.145 of 2003 in O.S.No.96 of 2002 by the Court of District Munsif, Paramathi.

2. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the petitioner herein has filed the suit in O.S.No.96 of 2002 before the Court below as against the respondent herein for declaration that he has right to take men, cattle, carts and other vehicles through the suit pathway to reach his property and consequential mandatory injunction to restore a portion of the pathway which was obliterated by the respondent/defendant and for permanent injunction. When the said suit was pending, the respondent/defendant filed a petition in I.A.No.145 of 2003 under Order 26 Rule 9 CPC praying to appoint an Advocate-Commissioner to note down the physical features of the suit property.

3. A Counter was filed before the Court below by the petitioner thereby submitting that the respondent had already filed a suit in O.S.No.33 of 2002 before the same Court as against the petitioner herein for permanent injunction; that in the said suit, the main issue between the parties is whether the petitioner is entitled to use X2, X3 portion (which is the subject matter in the present suit) of the pathway as cart track or not and in the said suit, the petitioner as the defendant therein filed an application in I.A.No.220 of 2002 to appoint an Advocate-Commissioner and the Commissioner also submitted his report and plan and based on the advocate-Commissioner's report and plan filed therein, the present suit was filed by the petitioner; that without disclosing the said fact of an Advocate-Commissioner having already been appointed and filed the report, the present petition filed by the respondent/defendant without asking for scraping of the earlier report is not sustainable.

4. Based on the above pleadings, the Court below would conduct an enquiry wherein no oral or documentary evidence was adduced on either side and in consideration of the facts and circumstances of the case, would hold that no document was produced to prove that both suits are connected to each other and the properties are the same and to determine the dispute and that the appointment of an Advocate-Commissioner is a must. On such reasons, the Court below would ultimately allow the petition filed by the respondent herein for appointment of the Advocate-Commissioner. Aggrieved, the petitioner/plaintiff has come forward to file the above civil revision petition on certain grounds such as (i)that the learned District Munsif has failed to comprehend the ambit and scope of Order 26 Rule 9 CPC, which has resulted in miscarriage of justice; (ii) that the learned District Munsif has failed to see that with respect to the same property, already the Advocate-Commissioner has visited the suit property and filed his report and plan in the connected suit in O.S.No.33 of 2002 and hence nothing remains to be elicited by the advocate-Commissioner; (iii) that the learned District Munsif has failed to consider the cause of action alleged in the present suit and it is appropriate to mention that only since the respondent/defendant obliterated a portion of the suit pathway and filed the connected suit in O.S.No.33 of 2002, the present suit was filed; (iv) that the learned District Munsif has failed to see that the appointment of an Advocate-Commissioner is totally unnecessary and further more, the present suit and the suit in O.S.No.33 of 2002 have got to be tried together which would mean that one Commissioner's report and plan would be suffice to decide the issue in controversy.

5. During arguments, the learned counsel for both would only reiterate what materials have been brought forth in the application filed for the appointment of the Commission and the counter filed therein and th