The main legal point established is that the purpose of an application for appointment of Advocate Commissioner under Order XXVI Rule 9 C.P.C. should be considered in light of the facts of the case and not assumed to be for collecting evidence.

JUDGMENT

(Common Prayer: These Petitions are filed under Article 227 of the Constitution of India praying to set aside the Fair and Decreetal Order passed by the Subordinate Court at Mettur, dated 07.03.2016 in I.A.Nos.115 and 116 of 2015 in O.S.Nos.8 and 9 of 2013.)

Common Order

1. These Civil Revision Petitions are filed challenging the Fair and Decreetal Order passed by the learned Subordinate Judge, Mettur in I.A.Nos.115 and 116 of 2015 in O.S.Nos.8 and 9 of 2013 vide order dated 07.03.2016.

2. The Revision Petitioners are the plaintiffs in the suit in O.S.No.8 and 9 of 2013 filed for declaration, declaring that the plaintiffs are the absolute owners of the suit properties and for a consequential decree, declaring that the sale deed executed by the defendants 1 and 3 in favour of the 2nd defendant dated 07.09.2011 registered in Document No.4995 of 2011 on the file of Sub-Registrar Office, Thamangalam is null and void and for permanent injunction interdicting the defendants and their agents from in any way creating any document in respect of the suit properties.

3. The Revision Petitioners/plaintiffs filed the said Interlocutory Applications in I.A.Nos.115 and 116 of 2015 under Order XXVI Rule 9 of Civil Procedure Code for appointment of Advocate Commissioner to note down the physical features in the suit properties such as existing buildings, door numbers, service connections, to measure the suit property with the help of the Village Administrative Officer, Pappampadi Village along with revenue records and to file a report with rough plan.

4. Learned counsel appearing for the Revision Petitioners submitted that the respondents/defendants have suppressed the exclusive and absolute possession in the suit property by the plaintiffs and the existence of terrace buildings, service connections in the suit properties have been collusively manipulated and forged a sale deed in between them in respect of suit property and other properties as if they are vacant lands. He further submitted that even in their written statement, the respondents/defendants have falsely denied the averments made in the plaint regarding the existence of terrace building, service connections in the suit property.

5. Learned counsel further added that the above said suits are filed for the relief of declaration and permanent injunction, there were allegations and counter allegations regarding the existence of terrace buildings, service connections in the suit property by both parties in the suit in order to put forth the exact and real topography of the suit property before the trial Court and in order to arrive at a fair conclusion about the suit property, the appointment of Advocate Commissioner is of absolute necessity. The Commissioner’s report and the plan will certainly elucidate, substantiate and put forth the exact and real features in the suit property before the trial Court. The prayer in the application is extracted hereunder:

For the reasons stated in the accompanying affidavit, the petitioner/plaintiff most humbly prays that this Honourable Court may kindly be pleased to pass an order appointing a commissioner of this Honourable Court to make a local inspection of the petition mentioned property in the presence and with the assistance of the Village Administrative Officer, Pappampadi Village along with revenue records and note down the physical features in the suit property such as existing buildings, door numbers, service connections and file a report with rough plan and pass such other suitable orders and thus render justice.

6. Learned counsel further contended that no objection was raised by the respondents/defendants, no counter was filed in the Interlocutory Applications filed in I.A.No.115 and 116 of 2015 in O.S.Nos.8 and 9 of 2013 and they remained exparte in both the applications. He added that in the interest of justice and for the proper adjudication of the subject matter of the suit, the appointment of Advocate Commissioner is necessary.