O R D E R

This civil revision petition is filed challenging the fair and decretal order passed in C.M.P.No.88 of 2015 in A.S.No.135 of 2013 dated 17.03.2020 passed by the II Additional City Civil Court, at Chennai, dismissing the petition filed by the revision petitioner for appointment of Advocate Commissioner under Order XXVI Rule 9 of C.P.C. The suit is filed for recovery of posession.

2. The learned counsel appearing for the revision petitioner submitted that since the suit is for recovery of possession and the property could not be identified, the application under Order XXVI Rule 9 of C.P.C for appointment of Advocate Commissoner was filed by the revision petitioner/appellant. The appeal was filed on 01.10.2012 which was numbered as A.S.No.135 of 2013

on the file of the II Additional City Civil Court at Chennai.

3. The learned counsel further submitted that the suit in O.S.No.1286 of

2009 on the file of XV Assistant City Civil Court, Chennai, was decreed on 01.08.2012 and the revision petitioner/defendant was set exparte, but the judgment and decree was passed on merits by the trial Court on 01.08.2012.

4. The learned counsel further submitted that under Order VII Rule 3 of

C.P.C, a specific ground was taken by which, since the plaintiff in the plaint has not stated the description of properties with specific area and boundaries which is mandatory under Order VII Rule 3 of C.P.C and without which, the plaintiff/respondent cannot succeed in the suit. The appeal in A.S.No.135 of 2013 was filed on 01.10.2012 and the application under Order XXVI Rule 9 for appointment of Advocate Commissioner was filed with a delay of two years i.e. January 2015.

5. The learned counsel further submitted the petition filed under Order

XXVI Rule 9 seeking appointment of Advocate Commissioner can be made at any stage of the suit, including the Appellate Court or Superior Courts. He also further submitted that an Advocate Commissioner can always be appointed for the purpose of effective adjudication of the disputes arising in the suit.

6. In the written statement which was filed in O.S.No.1286 of 2009 by the revision petitioner/defendant, there was a specific avernment to the effect that the suit property has not been properly described and the trial Court had erroneously dismissed the said contention. Therefore, the revision petitioner/defendant herein has promtply filed a petition seeking for appointment of an Advocate Commissioner to identify the suit property and if the suit property cannot be identified, the decree passed by the trial Court in

O.S.No.1286 of 2009 is liable to be reversed.

7. The learned counsel further submitted that the respondent/plaintiff has only stated in the description of property that he wants vacant possession of the portion of Door No.1, Smith Lane, and it is the bounden duty of the respondent/plaintiff to describe the property correctly but, the trial Court has not considered it, which has been challenged in the appeal. While so, the Court below ought to have appointed an Advocate Commissioner to identify the property.

8. The learned counsel further submitted that the Appellate Court took the view that the respondent/plaintiff is the owner of the property and there is no reason for appointing Advocate Commissioner as prayed for by the revision petitioner/defendant.

9. The learned counsel drew the attention of this Court to the affidavit filed in support of the application, wherein, he has clearly stated that the suit property will have to be identified and one of the grounds in the appeal is to the effect that the plaintiff has not described the suit property as available on ground. Therefore, an Advocate Commissioner will have to be appointed to visit the suit property and a detailed report has to be filed in respect of the physical features of the suit property.

10. He also drew the attention of this Court to paragraph No. 17 of the counter affidavit filed by the respondent, wherein, it is stated that earlier, eviction proce