No interference in the order of trail court appointing commissioner in a part heard case is required.

1. The Petitioner has challenged the order appointing a Commissioner in a Part-heard case contending it as one without jurisdiction, per se illegal and even perverse. The facts in brief are, the respondent herein filed R.C.O.P.No. 1274 of 1992 against the petitioner under Section 10(2)(i) for wilful default, 10(2) (v) for acts of waste and 10(3)

(a) (i) for owner’s occupation of the Tamil Nadu Buildings (Lease and Rent Control) Act, in short Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as the ‘Act’). After completion of the pleadings, the case was taken up for trial on 28. 1993 adjourned to 9. 1993. The respondent landlord after examination in part, filed an application for appointment of an Advocate Commissioner to inspect the petition scheduled property occupied by the petitioner herein with a direction to the Advocate Commissioner to avail the services of a civil engineer to submit a report with plan and other enclosures. The said application was opposed by the petitioner herein tenant. After hearing the arguments on the application, order was reserved and case was adjourned from 21. 1994 to various dates and finally on 11. 1994, order was pronounced, by the learned Judge appointing the Commissioner. Learned Judge appointed Shri.R.E. Deenatha Rao, Civil Engineer to inspect the property and find out how the property is used by the tenant, whether any damage caused. If damaged, the effect and the extent of it and the condition of the petition scheduled property.

2. The grievance of the petitioner is that the learned Judge has failed to apply his mind to the facts of the case. According to the petitioner, the landlord should prove the grounds of eviction by adducing proper and necessary evidence, if necessary, by examining his own engineer and cannot seek the aid of the Court to prove his case and get all materials and that can be done only after the closure of the evidence to elucidate any matter in dispute. He has further contended that the learned Judge has misread the statement in the counter that the tenant has acceded to the appointment of an Advocate Commissioner. All that was submitted was only to avail the services of his own engineer instead of asking for appointment of an Advocate Commissioner or an engineer. In substance, the landlord can prove and substantiate his case by examining number of witnesses and producing any number of documents, but cannot seek for appointment of a Commissioner through the aid of the Court at the earliest stage and it can be only for elucidation of the matter in dispute and not meant for collection of evidence. Since the order passed by the learned Judge is not appealable, which is merely procedural and does not affect the rights or liabilities of the parties, he has filed a petition under Article 227 of the Constitution India in view of the decision in The Central Bank of India Ltd., v. V.S. Gokal Chunk, AIR. 1967 S.C. 799.

3. Learned counsel for the respondent contended that this Court in the guise of exercising its jurisdiction under Article 227 cannot convert itself into a Court of appeal. If an error or fact eventhough apparent on the face of the record cannot be corrected by means of writ under Article 227 of the Constitution and it is open to the petitioner to setforth the error or defect or irregularity, if any, in the impugned order as a ground in his appeal from the final order in the main proceeding and the impugned order is not perverse or illegal since the court has the power to appoint a Commissioner for the purpose of elucidating any matter in dispute. He also submitted that the petition scheduled properties were settled on the respondent by virtue of a deed of settlement executed on 35. 1975 and the revision petitioner being the eldest son of the family allowed to occupy one portion of the property on a monthly rent of Rs.200/- and inspite of several litigations, the petitioner is squating the property and the respondent is unable to g