The appointment of Advocate Commissioner for property inspection in a suit should serve the purpose of bringing to the notice of the Court the availability of the building in the suit property, not solely for collecting evidence.

1. This Civil Revision Petition has been filed against the fair and decreetal order dated 30/8/2012 made in I.A.No.726 of 2011 in O.S.No.294 of 2011 on the file of the Sub-Court, Palani (Camp Court Kodaikanal).

2. The respondents are the plaintiffs in O.S.No.294 of 2011 on the file of the Sub-Court, Palani. The suit has been filed by the respondents for declaration and mandatory injunction for removal of the superstructures restraining the defendants from making further constructions and also for mandatory injunction with respect to certain lease deeds. Pending the trial of the suit, the plaintiffs have filed an application in I.A.No.726 of 2011 under Order 26 Rule 9 CPC for appointment of Advocate Commissioner for inspecting the property with the assistance of Surveyor to note down the physical features to ascertain the four boundaries and to file a report with plan.

3. In the affidavit, inter alia, it is alleged by the plaintiffs that after filing of the suit, the defendants 1 to 4 have made further construction and even after filing of the suit, the plaintiffs did not get any relief. Hence an Advocate Commissioner has to be appointed, so as to inspect the property with the assistance of Surveyor for noting down the physical features to find out the four boundaries and to file a report with plan.

4. The defendants have filed a counter in which among other things they have also stated that the appointment of Commission for local inspection is unsustainable in law. The suit filed by the petitioner is for declaration, consequential injunction and a mandatory injunction for removal of superstructures.

5. After hearing both sides, the learned Sub-Judge, Palani has entertained the plea of the plaintiffs by appointing an Advocate Commissioner by observing that since the plaintiffs have prayed for mandatory injunction for removal of the construction, it would be useful for the Court to know about the present position in the suit property only by way of appointing the Advocate Commissioner and the defendants will not be prejudiced by the appointment of the Commissioner.

6. Aggrieved against the said order, the defendants are before this Court with this Civil Revision Petition.

7. Mr.R.Vijayakumar, learned counsel appearing for the petitioner would contend that the appointment of Commissioner is not at all necessary for the further progress of the case since the suit is for declaration of title, permanent injunction, mandatory injunction and recovery of possession. The prayer in the application would indicate that only for the purpose of collecting evidence, the plaintiffs have taken this attempt and that no useful purpose would be served by the appointment of Advocate Commissioner.

8. Contending on the other side of the coin, Mr.Vakeeswaran, learned counsel for the respondents would submit that there is nothing wrong on the part of the Court below for appointing the Commissioner since the prayer in the suit is relating to the mandatory injunction for removal of superstructures and the Court has to know about the existence of the superstructures which are very much available in the property and there is no attempt on the part of the respondents to collect evidence and that nothing has been made out for interfering with the order challenged before this Court.

9. A close scrutiny of the prayers would go to show that no useful purpose would be served if the appointment of Advocate Commissioner is made. The only intention of the plaintiffs is to collect evidence which is against the settled law. No spot inspection is required because the plaintiffs have not stated in the petition as to what construction has been put up by these defendants and hence no prejudice would be caused to the plaintiffs therein even if the respondents put up construction and hence the appointment of Advocate Commissioner is not warranted.

10. The learned Sub-Judge, Palani has observed that in order to bring to the notice of this Court, the availability of