The main legal point established in the judgment is the legitimacy and essentiality of appointing an Advocate Commissioner for local investigation and to guide the court in decision making, as per Order XXVI Rule -9 of the Code of Civil Procedure and previous rulings.

JUDGMENT

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 11.01.2023 made in IA.No.3 of 2022 in OS.No.141 of 2022 on the file of the District Munsif Court, Perundurai, by allowing this Civil Revision Petition.)

This Civil Revision Petition is filed by the first Defendant in OS.No.141 of 2022 on the file of the Learned District Munsif Court, Perundurai.

2. It is the contention of the Learned Counsel for the Revision Petitioner that the Plaintiff in OS.No.141 of 2022 had filed a suit for declaration of his right in the cart track in RSF.No.579/19A, 579/12B, 579/11J and RSF.No.579/11A from North-South road in RSF.No.578 to RSF.No.579/5 of Nichampalayam Village in Perundurai Taluk.

3. It is the further contention of the Plaintiff in the suit that the adjacent land owner to the suit property had been preventing the Plaintiff from using common cart track pathway. It is the further contention in the plaint that the cart track had been used in common for more than 50 years. Therefore, he had sought an appointment of Advocate Commissioner in IA.No.3 of 2022 in OS.No.141 of 2022.

4. It is the contention of the Learned Counsel for the Petitioner/first Defendant in the suit in OS.No.141 of 2022 that the Learned District Munsif, Perundurai, had allowed the petition in IA.No.3 of 2022 as per the order dated 11.01.2023 ignoring the vehement objection of the Respondent in the application.

5. It is the further contention of the learned counsel for Petitioner herein who is the first Respondent in IA.No.3 of 2022 who is the first Defendant in the suit that the Advocate Commissioner petition is not maintainable as it is an attempt to collect the evidence. The Plaintiff is entitled to prove his case through oral and documentary evidence in support of his plaint averments. Whereas, here it is the case where the Plaintiff is attempting to collect the evidence. Therefore, it cannot be permitted.

6. After due enquiry, the Learned District Munsif, Perundurai, in the order in IA.No.3 of 2022 dated 11.01.2023 ignoring the vehement objection of the first Defendant/first Respondent in the counter had allowed the petition. Also no reasons had been given for appointment of Advocate Commissioner. Therefore, aggrieved by the same, the first Defendant in the suit and the Respondent in IA.No.3 of 2022 had preferred this Civil Revision Petition under Article 227 of the Constitution of India, seeking to set aside the order dated 11.01.2023 in IA.No.3 of 2022 in OS.No.141 of 2022.

7. In support of his contention, the Learned Counsel for the Petitioner relied on the decision of the Learned Single Judge of this Court in CRP.(PD).No.3980 of 2016 dated 08.03.2022 and also placed reliance on the earlier reported ruling of this Court in 2006-4-L.W.516 & 2006-4- L.W.525.

8. The Learned Counsel for the Petitioner seeks to set aside the order passed in IA.No.3 of 2022 in OS.No.141 of 2022 dated 11.01.2023.

9. The Learned Counsel for the Respondent in OS.No.141 of 2022 had vehement objection to the submission of the Learned Counsel for the Petitioner stating that the Advocate Commissioner was appointed in IA.No.3 of 2022 and he had filed the report along with plan. It is not the case for collecting evidence. It is the petition seeking appointment of an Advocate Commissioner to note down the physical features. Therefore, the same will help the Court to appreciate the evidence better. In support of his contention, the Learned Counsel for the Respondent also placed reliance on reported ruling of this Court in CDJ 2007 MHC 2947 at para No.6 which reads thus:

“6. It is true that the Advocate Commissioner''s report and plan cannot substitute the documentary evidence like title deeds, Village Map, etc., But, a perusal of the order impugned would show that the trial court was convinced in granting the relief only to assist the court in arriving at a right decision. The court can appoint A