ORDER: Heard both sides. This civil revision petition has been filed against the order of refusal passed by the Principal Sub Judge, Erode for appointment of commissioner to inspect the disputed property in I.A.No.793 of 202 in O.S.No.549 of 2002 on 28.11.2002.

2. It is argued on behalf of the revision petitioner to the effect that the revision petitioner was originally a tenant of the premises of a lease agreement dated 1.1.1996 by paying an advance of Rs.5,00,000. Then the revision petitioner closed the business, vacated the premises and handed over possession of the same to the respondents on 1.2.2001. But, the respondents did not return the advance amount of Rs.5,00,000 in spite of demands and issue of legal notice. However the respondents have issued reply notice stating that possession of the suit property was not handed over to them. In fact the premises, is in possession of some third parties at the instance of the respondents. So, the petitioner happened in file the suit for recovery of the advance amount. In the said circumstance, the petitioner moved for appointment of advocate commissioner to note down physical features with reference to possession of the premises with third parties, etc. by filing I.A.No.793 of 2002.

3. After having considered the allegations, the Principal Sub Court Erode, has observed that advocate commissioner cannot be appointed and the question as to who is in possession cannot be decided on the basis of the Commissioner’s report and thereby dismissed the petition. Aggrieved against such dismissal, the revision petitioner appears to have filed the civil revision petition.

4. The only point for consideration is whether the order of the Principal Sub Judge is correct and justified and whether the civil revision petition is maintainable before this Court.

5. It is needless to point out that an advocate commissioner cannot go into the question as to who is the actual possessor of the premises and even if the commissioner were to submit the report, it is always questionable by way of filing objections, etc. by the other party and so, the matter in dispute can be properly appreciated only after recording of oral and documentary evidence that may be let in by either parties and thereby the order of the Principal Sub Court, Erode stands correct and justified.

6. Moreover, as per the amended C.P.C., with effect from 1.7.2002, this Court has no power to entertain the civil revision petition under Sec.115, C.P.C. inasmuch as the order in question is interlocutory. It is also to be noted that even if the order had been passed in favour of the revision petitioner by the Principal Sub Judge, Erode, that order itself cannot be one of final disposal of the suit sand that the Principal Sub Judge, Erode does not appear to have exercised the jurisdiction not vested in it by law or have failed to exercise the jurisdiction so vested or exercised his jurisdiction illegally or with the material irregularity within the meaning of Sec.115 of amended C.P.C. and therefore, the civil, revision petition as such, in my view, is not maintainable.

7. In this context, it is also to be pointed out that the Supreme Court has categorically held in Shiv Sakthi Co-operative Housing Society, Nagpur v. M/s.Swaraj Developers and others, (2003)2 M.L.J. 170 (S.C.): (2003)3 Supreme 729, that High Court has no jurisdiction to maintain this kind of revision petitions. Consequently, this civil revision petition is dismissed. No costs.

Click Here to Read the rest of this document