The power of appointment of an Advocate Commissioner must be exercised with caution and not as a matter of routine.

1. The Revision petitioner/Petitioner/Appellant has projected the present Civil Revision Petition as against the order dated 15.04.2004 in I.A.No.145 of 2004 in A.S.No.30 of 1999 passed by the learned Sub-Judge, Kuzhithurai.

2. The First Appellate Court/learned Sub-Judge, Kuzhithurai while passing orders in I.A.No.145 of 2004 (filed by the Revision Petitioner/Petitioner/Plaintiff under Order 26 Rule 9 and Section 151 of Civil Procedure Code praying for appointment of an Advocate Commissioner) has among other things in paragraph 5 of the order has observed that this Petitioner/Appellant filed impleading petition and after notice to the proposed parties and the petition I.A.No.52 of 2004 was allowed and the parties impleaded after carry out amendment and A.P.C being filed, again this petitioner has filed this petition. The above circumstances would clearly shows that the petitioner is not in the intention of prosecuting the appeal. He files petition after petition and after the lapse of more than four years after filing of the appeal and after being posted in the list this petitioner comes forward with this petition stating the respondents are tying to alter the physical features of the property. The above contention cannot be acceptable. If really he is invigilant, he can prosecute the appeal and the appeal can be disposed of and consequently, dismissed the petition as not maintainable with costs.

3. The learned Counsel for the Revision Petitioner/Petitioner/Plaintiff submits that the impugned order of the First Appellate Authority namely Sub-Judge, Kuzhithurai in I.A.No.145 of 2004 in A.S.No.30 of 1999 dated 15.04.2004 in dismissing the application praying for appointment of an Advocate Commissioner is not sustainable either in law or in facts and further the First Appellate Court has not appreciated that the boundaries of the suit property can be demarcated only with the help of Commissioner by taking aid of Ex.A2 Kanapattam deed along with plan dated 28.02.1953 and also Ex.A12 the Plan.

4. The principal contention advanced on behalf of the Revision Petitioner/Plaintiff is that the Respondents are taking advantage of the dismissal of the suit and endeavouring to alter the physical features to demolish the western boundary and indeed, there is no bar for appointment of an Advocate Commissioners application to be projected by the Petitioner/Plaintiff at any point of time in law and that too, in the interest of justice. But, unfortunately, this aspect of the matter has been lost sight of by the First Appellate Authority namely the learned Sub-Judge, Kuzhithurai, which is resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in the interest of justice.

5. Per contra, it is the contention of the learned Counsel for the Respondents 27 and 28 that the Respondents 27 and 28 are not the parties to the suit proceedings and they been added as parties only in part Proceedings. Further, it is the contention of the learned Counsel for the Respondents 27 and 28 that the Revision Petitioner/Plaintiff in Plaint paragraph No.3 has clearly stated “that the Plaint schedule property having separate old survey plan and can be easily traceable.” and when that being the case, there is no need for the Revision Petitioner/Petitioner/Plaintiff to project an application namely I.A.No.145 of 2004 in A.S.No.30 of 1999 for appointment of an Advocate Commissioner as per Order 26 Rule 9 of Civil Procedure Code and that too, when the appeal comes up for hearing after the lapse of nearly five years.

6. Continuing further, it is the contention of the learned Counsel for the Respondents 27 and 28 that the Civil Revision Petitioner/Plaintiff is in the habit of projecting one or the other application namely the Revision Petitioner after filing the I.A.No.52 of 2004(impleading application) has filed the I.A.No.145 of 2004 in A.S.No.30 of 1999 praying for appointment of an Advocate Commissioner only with a vie