IMPORTANT POINT
Appointment of Court Commissioner – Delay alone is not a sufficient ground to reject prayer.

ORDER

R. Tharani, J.—This Civil Revision Petition is filed against the order, dated 21.08.2017 passed in I.A.No.358 of 2016 in O.S.No.118 of 2013, on the file of the District Munsif, Srivaikuntam.

2. The revision petitioners are the plaintiffs in the suit and petitioners in the I.A. petition. Respondent herein is the first defendant in the suit and first respondent in the I.A. petition. The petitioners filed a suit in O.S.No.118 of 2013 for a prayer of declaration and injunction. The petitioners filed a petition in I.A.No.358 of 2016, for a prayer of re-issuance of the Commissioner Warrant. That petition was dismissed by the District Munsif, Srivaikuntam. Against the same, the petitioners have preferred this Civil Revision Petition.

3. Brief substance of the petition in I.A.No.358 of 2016 is as follows:—

Before filing of the written statement by the defendant, a Court Commissioner was appointed in this case. In the written statement, it was stated that the plaintiffs are not aware of the survey number of the property and the boundaries in the document of the plaintiffs is wrong. Hence, the Commissioner has to re-visit the property and to verify the averments made in the written statement. A detailed report with the help of Surveyor is necessary and the Commissioner Warrant has to be re-issued.

4. Brief substance of the counter in I.A.No.358 of 2016 is as follows:—

There is no necessity to re-issue the Warrant. Already the Commissioner had visited the suit property and he had filed a sketch and report. Only with a motive to drag on the case, the petitioners have filed the petition.

5. After hearing both sides, the trial Court dismissed the petition. Against which, the petitioners have approached this Court by way of this Civil Revision Petition.

6. On the side of the revision petitioners, it is stated that the earlier Commissioner report was filed, prior to the filing of the written statement. The respondent has disputed the identity of the property in the written statement. Hence, the Commissioner has to re-visit the property, the earlier report was limited only to the physical features of the property. Only because the respondent disputed the identity of the property, the petitioners have to file this petition. The petitioners had no objections for the earlier report filed by the Commissioner and the second report will be only supplementary to the earlier report.

7. On the side of the revision petitioners, it is further stated that boundaries were denied in the written statement and that it is stated that the survey number was not known to the plaintiffs / revision petitioners. The delay in filing the petition is only due to the death of the first plaintiff/M.S.M. Mohamed Basul Ashhub. When steps was taken for the deceased first plaintiff, the second defendant passed away and steps has to be taken for the death of the second defendant and that the delay is reasonable.

8. Delay alone is not a sufficient ground to reject the prayer. A judgment of this Court reported in 2013(2) MWN (Civil 619 [V.Ganesan V. Kamal Jain and another] is cited, wherein, it is stated as follows:

8. Of course, it is true that in the normal course, without scraping the earlier report for defects, it is not possible to appoint a Commissioner for the same purpose. But here, the earlier Commissioner’s Report need not be scrapped because by re-issuing the warrant, the Commissioner is directed only to submit an Additional Report. Thus, both Reports will be on the file of the Court. Above all, a perusal of the impugned order of the lower Court would go to show that the Lower Court has dismissed the Interlocutory Application on the ground that the present Application was filed when the Interlocutory Application for Temporary injunction was under consideration and also because the earlier Commissioner Report was available.

9. Another judgment of this Court reported in 2016 (6) CTC – 66 [Semitta Kounder and another Vs. Murugesan], wherein, it is stated as follow