ORDER :

(This case has been heard through video conference)

This revision petition has been filed seeking to set aside the fair and decreetal order passed in I.A.No.850 of 2013 in O.S.No.507 of 2013 dated 17.11.2016 on the file of the Court of II Additional District Munsif, Salem.

2. The plaintiffs in O.S.No.507 of 2013 on the file of the Additional District Munsif, Salem, are the revision petitioners. The revision petitioners/plaintiffs had filed a suit for permanent injunction restraining defendants 1 to 3 and their men from putting any construction over the suit property. In the said suit, the respondents had filed a written statement. The petitioners/plaintiffs had filed I.A.No.850 of 2013 seeking for appointment of Commissioner to note down the physical features of the suit property, to measure the same and to file a report.

3. The Trial Court, by order dated 31.05.2013, nominated Thiru.G.K.Pugazhendhi as Advocate Commissioner and that he was directed to issue notice to both the parties in advance and to inspect the suit property with the help of a qualified Surveyor, to note down the physical features and measurements and to file his report on 01.07.2013. His remuneration was fixed as Rs.3,000/- directly to be paid by the petitioners/plaintiffs. The petitioners/plaintiffs had paid the remuneration to the Advocate Commissioner, however, for the reasons best known to him, the Commissioner had not proceeded to conduct inspection and had not filed the report.

4. Subsequently, the case had been adjourned on various dates. Whileso, finally on 17.11.2016, the court, finding that the petition under Rule 83 of the Civil Rules of Practice had not been filed, did not extend the time further and closed the petition under Order 26 Rule 18-B CPC.

5. The petitioners/plaintiffs, aggrieved against the closure of the petition, has filed this revision.

6. The learned counsel appearing for the petitioners/plaintiffs would submit that the court had appointed one Thiru.G.K.Pugazhendhi as Advocate Commissioner, by order dated 31.5.2013 and directed him to inspect the suit property with the help of a qualified Surveyor and to note down the physical features and measures and to file a report on 1.7.2013. He would further submit that the court had also fixed the remuneration of Rs.3000/- to him directly to be paid by the petitioners and in due compliance of the order passed by the court below, the petitioners/plaintiffs paid remuneration of Rs.3000/- to the Advocate Commissioner.

7. The learned counsel for the petitioners would further submit that the petitioners and their counsel had been following up with the Advocate Commissioner and the Advocate Commissioner had been taking time on several occasion since he was unable to find out a qualified Surveyor and though the Advocate Commissioner had been directed to file his report on 1.7.2013, he had not filed the report before the court within the time fixed by the court, however, the court had been extending time even without any petition being filed by the Advocate Commissioner.

8. The learned counsel for the petitioners would further submit that having received the remuneration, a duty is cast upon the Advocate Commissioner to conduct the inspection and file the report within the specified time and in the event of him being unable to file the report within the time for any reason, he, ought to have, being an officer of the court, filed a Memo seeking for extension of time. In the event of non-cooperation of either side, he should have brought it to the knowledge of the court. In such event, the court ought to have directed the parties to appear before the court and conducted an enquiry with regard to the information given by the Advocate Commissioner. In the event of the Advocate Commissioner failing to do so, the Trial Court ought to have issued notice to the Advocate Commissioner and if there had been any lapses on the side of the Advocate Commissioner, the Trial Court ought to have recalled the warrant