Belated filing of petitions without valid reasons and allowing suit proceedings to progress without raising objections earlier may lead to dismissal of revision petitions.

ORDER :

PRAYER : Civil Revision Petition filed under Article 227 of Constitution of India, to setaside the order made in I.A.No.334 of 2017 in O.S.No.88 of 2012, dated 01.11.2017 passed by the Sub Court, Sivakasi and allow the revision.

This Civil Revision Petition is filed to setaside the order made in I.A.No.334 of 2017 in O.S.No.88 of 2012, dated 01.11.2017 passed by the Sub Court, Sivakasi.

2. The brief facts of the case :

The revision petitioner is the plaintiff in O.S.No.88 of 2012 on the file of the Sub Court, Sivakasi. He filed a suit against the defendants 1 to 5 for the relief of declaration and consequential permanent injunction and for mandatory injunction to remove the encroachments made in the 2nd item of suit property. Pending suit, the plaintiff has filed the petition in I.A.No.334 of 2017 in O.S.No.88 of 2012 for appointment of advocate/commissioner to visit the suit property along with the Village Administrative Officer and Surveyor and to file report in respect of encroachment. The defendants have strongly resisted the petition by filing detailed counter. After hearing both, the Trial Court has dismissed the petition in I.A.No.334 of 2017 in O.S.No.88 of 2002 on 01.11.2017. Aggrieved by the order of the Trial Court, the petitioner/plaintiff moved this Court by way of this Civil Revision Petition.

3. Heard both side and perused the records in this Civil Revision Petition.

4. The learned counsel appearing for the revision petitioner has argued that the petitioner has filed the main suit in O.S.No.88 of 2012 against the respondents before the Trial Court for declaration, permanent injunction. After filing the suit, the defendants have made encroachment and constructed a building therein and hence, the petitioner has filed amendment petition and added the relief of mandatory injunction to remove the encroachments made by the defendants. In order to find out encroachment made or not, the petitioner has filed the petition for appointment of advocate/commissioner for visiting the suit property with assistance of revenue officials and for filing the report to that effect. But, the Trial Court has observed that the petitioner has not assigned valid reason and also on the ground that no date of encroachment made by the respondents was mentioned. The findings of the Trial Court is not correct in the eye of law and the commissioner’s report is necessary one to decide the suit considering the reliefs sought therein. Therefore, the impugned order has to be set aside and the revision petition may be allowed.

5. Per contra, the learned counsel for the respondents has vehemently contended that the petitioner has filed the petition seeking appointment of advocate commissioner belatedly i.e., after lapse of five years that too the suit is pending for cross examination D.W.2 after completion of the plaintiffs’ side evidence. Further, the trial of the suit is going to be closed and the suit is ripe for argument. The petitioners and the respondents are close blood relatives and after demise of their father they have orally partitioned the properties in the presence of elders and the parties have constructed houses in their respective shared portion and have been residing therein. After oral partition several deeds were also created and registered mentioning the oral partition with the knowledge of the petitioner. Suppressing all these facts, the petitioner has filed the vexatious suit and filed the petition for appointment of advocate commissioner to prolong the suit proceedings further. Considering all these aspects, the Trial Court has dismissed the petition, which warrants no interference by this Court. Hence, the petitioners have no valid case in this Civil Revision Petition and the same may be dismissed.

6. On hearing both and on perusal of records, it is clear that the revision petitioner and the respondents 2 to 5 are the children of late Arokicasamy born through the 1st respondent. The petitioner has filed the main suit in the ye