The discretionary power of the court to appoint an advocate commissioner in a suit for injunction and the necessity to measure the entire property to elucidate the real controversy.

1. The petitioner has filed this Civil Revision Petition to set aside fair and decreetal order passed by the learned I Additional District Munsif Court, Coimbatore on 20.09.2012 in I.A.No.416 of 2011 filed in I.A.No.2055 of 2010 in O.S.No.1824 of 2010 by allowing this Civil Revision Petition and consequently reject the commissioner’s report filed in I.A.No.2055 of 2010 in O.S.No.1824 of 2010.

2. The case of the revision petitioner is that the respondent herein has filed a suit for permanent injunction in O.S.No.1824 of 2010 against the revision petitioner. In the said suit the respondent herein filed an application under Order 26 Rule 9 of CPC to appoint an advocate commissioner to make local investigation and to note down the physical features of the suit property. The said interlocutory application was ordered and an Advocate Commissioner was appointed by the trial Court and a warrant of commission was issued to note down the physical features of respondent’s property and measure the respondent’s property with the help of a surveyor and to file a report before this Court. However, in spite of the memo of instruction issued to the learned Commissioner by this revision petitioner, instructing to adhere with the directions given in the warrant of commission, the advocate commissioner by violating the direction issued in the warrant has measured the revision petitioner’s property. The said act of measuring the revision petitioner’s property is unwarranted. Further the measurements reflected in the Advocate Commissioner’s report are incorrect. Therefore the revision petitioner has filed an interlocutory application in I.A.No.416 of 2011 in I.A.No.2055 of 2010 by invoking the inherent power of the trial Court under section 151 CPC with a prayer to reject the advocate commissioner’s report as inadmissible.

3. However, without proper appreciation of the fact that the Advocate commissioner as well as the surveyor have exceeded the scope of the commission, thereby measured the revision petitioner’s property, the learned trial judge has erroneously dismissed the said application. Challenging the said order, this Civil Revision Petition has been filed.

4. I heard Mr.P.Udhayasankar, learned counsel appearing for the petitioner and Mr.G.Karthikeyan, learned counsel appearing for the respondent.

5. The learned counsel for the revision petitioner would submit that the advocate commissioner has exceeded his jurisdiction in measuring the revision petitioner’s property which is not a subject property of the suit. In fact the advocate commissioner has invaded into the petitioner’s property in the grad of executing the warrant, which the warrant does not empower him. Further the measurements mentioned by the learned advocate commissioner are erroneous and unacceptable. One another prime contention of the revision petitioner is that in a suit for injunction simpliciter based on possession, the appointment of advocate commissioner itself is an error and the same is unwarranted.

6. Per contra, the learned counsel for the respondent would submit that earlier the suit property and the adjacent properties as a whole stood owned by the respondent’s family. During their family partition the property was partitioned into three portions as A, B and C schedule properties and they were allotted to the mother, father and the respondent as their respective shares. The revision petitioner is the purchaser of one such portion comprised in ‘C’ schedule belonging to his mother Saraswathiammal. Only if the entire property is measured which is of one unit the real controversy can be elucidated. Only on proper appraisal of the very fact the learned trial judge has appointed an advocate commissioner to note down the physical features of the suit property. Accordingly the advocate commissioner conducted a field inspection and has submitted his report before the trial Court. Hence the petition filed by the revision petitioner to reject the advocate commissioner’s rep