The importance of following the proper legal procedure for seeking necessary remedies and the role of the Advocate in filing memos seeking relief on behalf of the party.

This civil revision petition is preferred by the revision petitioners/respondents/defendants as against the order dated 20.12.2007 passed in the Memo dated 112. 2007 in I.A.No.1946 of 2007 in O.S.No.538 of 2007 by the District Munsif, Tiruvallur in permitting the respondent/petitioner/ plaintiff to repair the roof in the presence of Advocate Commissioner already appointed.

2. The trial Court has passed orders in the Memo dated 112. 2007 (filed by the respondent/petitioner/plaintiffs counsel) to the effect that considering the facts and circumstances of this case, the petitioner is permitted to repair the roof in the presence of the Advocate Commissioner already appointed. The commissioner may seek necessary Police assistance, if necessary. The commissioner may file his interim report on the repairing process after its completion. Call on 17.01.2008.

3. According to the learned counsel for the revision petitioners/respondents/defendants, the order of the trial Court dated 20.12.2007 passed in the Memo is based on presumption and surmises and that the trial Court has not taken into consideration of the fact that the Memo dated 112. 2007 filed by the respondent/plaintiff is not maintainable when a petition in I.A.No.1945 of 2007 for interim injunction is pending and that no valid reason has been assigned in the memo and only with an intention to thwart the legal rights of the revision petitioners/ defendants the said memo has been filed and that the Commissioner appointed in I.A.NO.1946 of 2007 in O.S.No.538 of 2007 has not mentioned the suit schedule property and filed his report and that the order in the memo has been passed without giving notice to the revision petitioners and therefore, the order is against the principals of natural justice and therefore, prays for allowing the revision.

4. In I.A.No.1946 of 2006 in O.S.No.538 of 2007 before the trial Court, the respondent/petitioner/plaintiff has prayed for the relief of appointment of an Advocate Commissioner along with Surveyor to note down the physical features of the suit properties and measure the same and fix the boundaries thereof and direct him to file his report and sketch etc. On 29.08.2007 the trial Court has appointed Mr. G. Venkatesan, Advocate, as Commissioner in the matter directing him to visit suit property and to note down the physical features and measure the suit property with the help of the competent Surveyor and also fix the boundary stones according to both parties documents and file a report and fixed his remuneration at Rs.1,500/-.

5. It appears that the trial Court, in I.A.No.1946 of 2007 on 112. 2007, has granted time till 17.01.2008 for filing report by the Advocate Commissioner. It is relevant to point out that a Memo dated 112. 2007 has been filed before the trial Court on behalf of the respondent/ petitioner/plaintiff by his counsel inter alia stating that the revision petitioners/defendants frequently disturb the respondent/plaintiff so that the plaintiff could not undertake repair works and in fact, on 210. 2007 the revision petitioners/defendants violently removed the plastic cover on the roof of the suit house and that caused leakage of the same etc. and therefore, prayed for an issuance of a direction to the Advocate Commissioner to note down the physical features and to file report of the suit house and to provide necessary assistance to carry out the repair works thereof. Admittedly, the respondent/ petitioner/plaintiff has not filed any fresh interlocutory application (other than I.A.No.1946 of 2007) praying for a direction to be issued to the Advocate Commissioner to note down the physical features and to file report.

6. It is to be noted that the appointment of Commissioner for ascertaining the condition of suit premises by making local inspection comes within the purview of Order 39 Rule 7 and not under Order 26 Rule 9 C.P.C., in the considered opinion of this Court. In this connection, this Court aptly points out the