The delay in filing an application for the appointment of an Advocate Commissioner at the appellate stage may not be a sufficient reason for rejection, especially when the petitioner has valid reasons for seeking such appointment.

1. This Civil Revision Petition is filed against the order made in I.A.No.116 of 2010 in A.S.No.4 of 2010 on the file of Sub-Court, Gingee, wherein and whereby the application filed by the petitioner herein seeking for an appointment of Advocate Commissioner to note down the physical feature of the suit property, was rejected. This Court, on 22.02.2013, issued notice to the respondents in this Civil Revision Petition. Though notice was served on them, both through Court as well as privately, they have chosen not to appear before this Court either in person or through counsel. Their name is printed in the cause list.

2. Heard the learned counsel appearing for the petitioner.

3. The petitioner is the plaintiff in O.S.No.367 of 2002 on the file of Principal District Munsif Court, Gingee seeking for the relief of mandatory injunction for restoring the pipeline put up in the suit property and for damages. The said suit, after contest, came to be dismissed on 30.10.2009. The plaintiff filed further appeal before the Sub-Court, Gingee in A.S.No.4 of 2010. During the pendency of the above said appeal, the petitioner herein/appellant therein filed I.A.No.116 of 2010 seeking for appointment of Advocate Commissioner to note down the physical feature of the suit property. The said application was rejected by the Court below on the ground that it was filed belatedly, that too, at the appellate stage. The appellate Court also found that the petitioner had not taken any steps to get an Advocate Commissioner appointed during the pendency of the suit and only to drag on the proceedings the present application is filed. Based on such observation, the Court below has rejected the application.

4. Learned counsel appearing for the petitioner submitted that there was no necessity or occasion for the petitioner to seek for appointment of Advocate Commissioner during the pendency of the suit in view of an agreement, executed and marked as Ex.A1, entered between the plaintiff and the third defendant, through which the defendants have permitted the plaintiff to lay pipeline in the suit property. Moreover, it is further submitted by the learned counsel that in a proceedings initiated under Section 145 Cr.P.C before the revenue authorities, the existence of a pipeline in the suit property has been admitted by the defendants even prior to the filing of the suit. Therefore, the petitioner, as the plaintiff, thought that there was no necessity for seeking Commission for inspecting the suit property. However, the suit itself came to be dismissed by the trial Court as the petitioner has not proved her case. The necessity now arose for seeking the Commission to inspect the suit property and file a report.

5. The Court below rejected the application only on the ground that it was filed belatedly, that too, in the appellate stage. The affidavit filed in support of the application before the Court below in I.A.No.116 of 2010 has not been considered by the Court below while rejecting the said application. It is specifically pleaded therein that the defendants have executed an agreement permitting the petitioner to lay the pipeline in the suit property and therefore, when there is a specific admission with regard to the existence of such pipeline, the petitioner was not required to take out an application during the pendency of his suit.

6. At any event, it is only an application seeking for appointment of Advocate Commissioner to note down the physical features of the suit property. Admittedly, the suit is one for mandatory injunction for restoration of the pipeline and for damages. Whether the pipeline was in existence or not in the suit property can be ascertained by appointing an Advocate Commissioner and such appointment will not prejudice the interest of the other side and on the other hand it would help the Court below to decide the issue. No doubt the petitioner has filed the application at the appellate stage. He has also given sufficient reaso