The central legal point established in the judgment is the necessity and maintainability of appointing an Advocate Commissioner in the context of a suit for recovery of damages and permanent injunction.

1. The respondent/plaintiff filed an application for appointment of an Advocate Commissioner and the same was allowed by the trial court. Aggrieved by the same, the defendants have preferred this civil revision petition. Heard the learned Advocate for the revision petitioners and the respondents.

2. The respondent/plaintiff, in the affidavit filed in support of the petition for appointment of an Advocate Commissioner, has stated that there are 19 aphasia trees (soft wood trees), in the disputed area, which are in his possession i.e. (after excluding ‘GHI’ portion). Now, the existence of aphasia trees in the suit property, is disputed by the defendants in this suit. So, a Commissioner may be appointed in this suit, to report whether aphasia trees are available in the suit property and to locate them. Since the defendants objected to the very existence of the aphasia trees, a commissioner has to be appointed in this suit to ascertain the said fact and also to cut and remove the said trees in the presence of the commissioner.

3. The petitioners/defendants resisted the application by filing a counter, wherein, they have stated that the commissioner already appointed in this case has not located the property, as per the plan in the earlier partition deed, dated 30.11.1124-M.E due to the defendants in the suit property. The commissioner has also not shown the area due to the defendants 2 to 6 in the plan filed by him. The defendants have strong objection to the report and the plan filed by the Advocate Commissioner and there is absolutely no necessity for appointment of an Advocate Commissioner. It is also stated that the aphasia trees will stand at least for 50 years and only to prolong the suit, this application has been filed. The trial court has not adverted to any of the averments made in the affidavit or in the counter and it has simply passed an order, “Both side heard. Petition allowed.”

4. The learned Advocate for the revision petitioners would contend that the trial court has not even chosen to discuss the merits of the averments in the affidavit and also in the counter and it did not at all take into consideration the relative merits of the case and has not passed any speaking order and hence, it is liable to be set aside.

5. The learned Advocate for the revision petitioners would also point out that the plaintiffs suit itself is one for damages and for recovery of a sum of Rs. 5,000/- and for injunction, restraining the defendants 1 to 6 from committing further damages in the suit property or in the compound wall of the plaintiff. In such a suit, appointment of an Advocate Commissioner is highly unwarranted. The revision petitioners have also pointed out that the plaintiff himself has admitted that the alleged trees are in the disputed area, which is claimed to be in possession of the plaintiff. Though it has been stated that the disputed area in the suit is only in respect of ‘GHI’ portion, it has got to be decided in the main suit, which is pending adjudication. The request of the plaintiff is for appointment of an Advocate Commissioner to find out whether there are aphasia trees in the suit property and also to locate them and thereby they are trying to create evidence for some other purpose and the same is not permissible. It is incumbent upon the plaintiff to prove his case and the suit is only for recovery of damages and also for permanent injunction, and not to cause further damages to the suit property. The relief sought for in the suit did not at all warrant the appointment of an Advocate Commissioner of this nature to find out the existence of the alleged trees and also to locate them. Under the guise of appointment of an Advocate Commissioner, the plaintiff is trying to fish out some other information, which is not permissible under law. It is therefore, submitted that the order passed by the trial court is not sustainable.

6. On the contrary, the learned Advocate for the respondent/plaintiff would c