Re-issuance of warrant for proper measurement of property by the same Commissioner at the instance of a party, who has resumed conducting his case after setting aside the ex parte order against him, would not cause any prejudice to the other side.

ORDER :

(Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 13.12.2013 passed in I.A.No.370 of 2013 in O.S.No.397 of 2011 on the file of the Additional District Munsif Court, Tuticorin.)

This Civil Revision Petition has been preferred as against the order passed by the learned Additional District Munsif Court, Tuticorin in I.A.No. 370 of 2013 in O.S.No.397 of 2011 dated 13.12.2013 by the petitioners/5th to 7th defendants. I.A.No.370 of 2013 was filed by the petitioners/5th to 7th defendants in the month of September, 2013 under Order XXVI, Rule 9 and Section 151 of the Code of Civil Procedure, 1908, seeking to re-issue the warrant directing the Advocate Commissioner to measure the plaint schedule property from West to East in terms of the original partition deed covering the shares of each and every shareholder along with the petitioners' share with the assistance of a surveyor. For the sake of convenience, the parties herein are referred to as arrayed in the I.A.No.370 of 2013 in O.S.No.397 of 2011.

2. The said application was resisted by the 1st respondent/plaintiff, stating that the petitioners/5th to 7th defendants have not made any objection to the Commissioner's report filed as early as on September 2012. Moreover in the facts and circumstances of this case, since the 1st respondent/plaintiff has already proved his case on the basis of documents and the Commissioner's report with plan, now the petitioners/5th to 7th defendants cannot seek to measure the plaint schedule property at their sweet will without making any objection to the said Commissioner's report. This suit is one for declaration and recovery of possession and the primordial question which has to be decided is as to the quantum of encroachment made in the plaint schedule property. Since it has been decided that there is no encroachment at all, the other details of the plaint schedule property as reported by the Commissioner's report nil dated filed in the month of September 2012 would suffice to decide this case. On that basis, the Trial Court dismissed the said application seeking to re-issuance of warrant to the Advocate Commissioner.

3. Heard the learned Counsel for the revision petitioners and the first respondent anxiously and perused the materials available on record. The learned Counsel for the revision petitioners took me through the various grounds of the Civil Revision Petition and the contents of the documents.

4. I.A.No.370 of 2013 is an application filed under Order XXVI, Rule 9 and Section 151 of the Code of Civil Procedure, 1908. The revision petitioners in their grounds have stated that the Trial Court failed to observe that they are not seeking appointment of a new Commissioner but only reissuance of warrant to the same Commissioner, which would facilitate the Court to arrive at a right conclusion. However, the learned Counsel for the first respondent submitted that without scrapping the report filed by the Commissioner, who has been already appointed and without filing objections to the said report, the revision petitioners have no locus standi to file a petition seeking re-issuance of warrant to the same Commissioner. In this case, the primordial point to be considered is whether the Trial Court is justified in dismissing an application under Order XXVI, Rule 9 and Section 151 of the Code of Civil Procedure, 1908, seeking re-issuance of warrant to the Advocate Commissioner in the pending suit.

5. The provisions of Order XXVI, Rule 10 (3) of the Code of Civil Procedure, 1908 is as follows:

“(3) Commissioner may be examined in person.- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.”

6. Thus, it is understood from Order XXVI, Rule 10(3) of the Code of Civil Procedure, 1908, that whenever there is any reason dissatisfied with the proceedings of the Commissi