The main legal point established in the judgment is the court's discretion to re-issue a Commissioner warrant based on factual circumstances and the Commissioner's duty to carry out the court's order despite non-cooperation from the parties.

These civil revision petitions are filed against the orders dated 14. 2005 and 3. 2006 passed in I.A.Nos.962 of 2005 and 962 of 2004, respectively, in O.S.No.130 of 2004 by the District Munsif, Nagapattinam.

Common Order Inveighing the orders dated 14. 2005 and 3. 2006 passed in I.A.Nos.962 of 2005 and 962 of 2004, respectively, in O.S.No.130 of 2004 by the District Munsif, Nagapattinam, these civil revision petitions are focussed.

2. A resume of facts, which are absolutely necessary and germane for the disposal of these civil revision petitions, would run thus:-

O.S.No.130 of 2002 was filed by Jothi Ammal, the petitioner in C.R.P.No.1079 of 2005 and respondent in C.R.P.No.882 of 2006 as against the respondent Jayapal in C.R.P.No.1079 of 2005 and petitioner in C.R.P.No.882 of 2006 seeking the following reliefs:

Tamil

During the pendency of the said suit, an Advocate Commissioner was got appointed for visiting the suit property and measuring the same with the help of a Surveyor. It appears, the Commissioner also visited the suit property, measured it and submitted his report. Being disconcerted and aggrieved by the Commissioners report and sketch, the defendant Jayapal filed the I.A.No.962 of 2004 for re-issuance of Commissioner Warrant, directing the Commissioner to measure once again the suit property, with the help of the Inspector of Surveys, Tiruvarur District. Whereupon, the lower Court, after hearing both sides, thought fit to re-issue the Commissioner warrant to the same Commissioner to visit the suit property and measure it with the assistance of the said Inspector of Surveys, as per order dated 14. 2005. It appears, the Commissioner took steps to re-visit the suit property and measure it. But due to the alleged non-co-operation of both sides, the Commissioner submitted his report to the Court his inability to carry out the mission. Whereupon the Court dismissed the I.A.No.962 of 2004 itself.

3. Challenging the order dated 14. 2005, the plaintiff-Jyothiammal preferred the C.R.P.No.1079 of 2005 on various grounds inter alia thus:

The lower Court should not have re-issued the Commissioner warrant, in violation of the well settled proposition of law as enunciated in the decisions of this Court reported in 2005(1) MLJ 577, 1995 (2) C.T.C.553 and 2000(3) C.T.C.78. Accordingly, she prayed for setting aside the order of the lower Court dated 3. 2006 passed in I.A.No.962 of 2004.

4. However, the said Jayapal, the defendant in the suit, being aggrieved by the dismissal of the I.A.No.962 of 2004 preferred C.R.P.No.882 of 2006 on various grounds, inter alia thus:

the lower Court, without giving due opportunity of being heard to the revision petitioner herein, simply dismissed the I.A. solely based on the submission made by the Advocate Commissioner as though the parties were not co-operating with the Commissioner.

Accordingly, he prays for setting aside the order of the lower Court dated 3. 2006.

5. There is no representation for Jyothi Ammal in both the C.R.Ps.

6. A bare perusal of the order of the lower Court dated 14. 2005 would exemplify and indicate that the lower Court thought fit, in its reasoned order, that the same Commissioner visiting once again the suit property, with the assistance of the Inspector of Surveys, Thiruvarur Taluk, would bring forth better facts so that the Court would be able to adjudge the lis in a just and proper manner. Such a finding is purely based on consideration of factual circumstances.

7. The contention of Jyothi Ammal-the petitioner in C.R.P.No.1079 of 2005 as though without scraping the said report, the other Commissioner should not be appointed is neither here nor there, for the reason that the lower Court has not taken a decision to appoint a fresh Commissioner, but it wanted better particulars regarding the suit property, by reissuing the warrant to the same Commissioner and such a measure is not prohibited as per the following decisions cited in the grounds of revision:

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