The court emphasized that the factum of possession should be adjudicated through oral and documentary evidence and cannot be entrusted to the Advocate Commissioner.

This Civil Revision Petition is filed by the defendant against the order dated 11. 2008 passed in IA.No.512/2008 in OS.No.176/2008 passed by the learned District Munsif Court, Manaparai.

2. The respondent/plaintiff had filed the above said suit for permanent injunction restraining the petitioner from interfering with the possession and enjoyment of the suit property on the ground that the respondent is a tenant, who is carrying on the Pharmacy Business and that the agreement is oral and the period of tenancy is five years.

3. According to the petitioner, the lease was given to the respondent for a period of three years and the respondent had agreed to vacate the premises on the expiry of the lease period of three years and accordingly on 12. 2008, he vacated the premises and also got the refund of Rs.1,00,000/-which he had paid as advance. Pending the suit, the respondent has filed the said application for appointment of an Advocate Commissioner to note down the features relating to the fact that the respondent had been in possession of the property and the electricity service connection had been disconnected to the suit property.

4. It is the case of the respondent that the petitioner was trying to dispossess the respondent unlawfully by resorting to illegal methods of disconnecting the electricity service connection with an ulterior motive to paralyze the business of the respondent and force him to vacate from the suit property.

5. In the counter filed by the petitioner in the said application, it is stated that the lease was given to the respondent for a period of three years and as agreed, the respondent vacated the premises and also got the refund of Rs.1,00,000/-. Therefore, it was submitted by the petitioner that no Advocate Commissioner can be appointed in order to collect or gather evidence in respect of one party.

6. The court below appointed an Advocate Commissioner by the impugned order on the ground that for the purpose of elucidating the matter in dispute and to find out as to whether the electricity service connection is disconnected, there is necessity for appointment of an Advocate Commissioner and thus allowed the petition by the impugned order. Hence, this Civil Revision Petition has been filed.

7. Mr. K. Srinivasan, the learned counsel for the petitioner would contend that an Advocate Commissioner cannot be appointed to find out as to who is in possession and for collection of evidence and the impugned order of the court below is beyond the scope of the Order 26 Rule 9 of CPC. He would submit that disconnection of electricity service connection as alleged by the respondent could be proved by documents and such an appointment for the said purpose will only amount to collection of evidence. He would advert to the observations made by this court in a catena of decisions ascertaining that the factum of possession cannot be ascertained by seeking an appointment of an Advocate Commissioner and it must be proved by evidence.

8. The learned counsel for the petitioner would contend that the contention of the respondent that no prejudice would be caused, if a Commissioner is appointed cannot be a ground for appointment of an Advocate Commissioner.

9. In the case of Chinnathambi and others Vs. Anjalai [2007-1-MLJ-513], it is held thus:-

"It is well accepted principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated only by oral and documentary evidence. Under such circumstances, the order of the lower court suffers from material irregularity and it is not in accordance with the principles laid down in the above said decisions."

The said vie w has been reiterated in the decisions rendered in the cases of M/s. Benz Automobiles Private Limited by its authorised person under the Companies Act, S. Ramamurthy Vs. C. Mohanasundaram and others [2003-3-MLJ-391], Meenakshi Vs. Vennila and another [2008-5-CTC-181] and Chandrasekara