IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.02.2022

CORAM:

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

C.R.P(PD).No.1178 of 2017

and

CMP.No.5609 of 2017

K.Vadivel

..Petitioner

Vs.

1.Annamalai

2.Manickam

3.Venkatachalam

..Respondents

Prayer: Civil Revision Petition filed under Article 227 of the

Constitution of India, against the fair and decreetal order of

the District Munsif Court at Sankari dated 23.01.2017 in

I.A.No.1126 of 2016 in I.A.No.30 of 2012 in O.S.No.295 of 20 10.

For Petitioner : Mr.P.Valliappan

O R D E R

A perusal of the records show that the respondents /

defendants in O.S.No.295 of 2010 had been served and in the

cause list, their names and addresses are also printed. This

was the position even on 14.02.2022, and this Court had given

one further opportunity and gave a direction to the Registry to

examine, whether any counsel had entered appearnce on behalf of

the respondents and the matter was adjourned. Again, there is

no response. There is a counsel appearing for the revision

petitioner, who is the plaintiff in the said suit.

2.The suit O.S.No.295 of 2010 had been filed seeking

permanent injunction restraining the defendants from interfering

with the peaceful posession of the plaintiff and from damaging

or dismantling the earthen crops bunds in the boundary of the

suit property. The suit property is a vacant land stretching to

several survey numbers. In the said suit, the respondent / 1^st

defendant had filed a written statement. It is seen that the

respondents / defendants filed I.A.No.30 of 2012, seeking

appointment of an Advocate Commissioner.

An Advocate

Commissioner was appointed and warrant also issued. The

Advocate Commissioner filed a report along with rough sketch of

the lay of the land.

3.Complaining that physical features have not been noted by

https://hcservices.ecourts.gov.in/hcservices/

the Commissioner and the plan, after due measurement of the

property had also not been filed by him, the revision petitioner

had filed I.A.No.1126 of 2016, seeking to reissue the warrant to

the very same Advocate Commissioner. It must be mentioned that

objections were also filed to the report of the Advocate

Commissioner. The application in I.A.No.1126 of 2016 came up

for consideration before the District Munsif at Sankari. The

learned District Munsif, by order dated 23.01.2017, dismissed

the said application, necessitating filing of the present

revision petition.

4.Mr.P.Valliappan, learned counsel appearing for the

revision petitioner pointed out that objections had been filed

with respect to the nature of inspection done and on the fact

that the Advocate Commissioner had not furnished a plan of the

lay of the land, which can be furnished only, if measurements

had been taken and that even the physical features had not been

mentioned and that boundaries had not been pointed out in the

report.

5.However, the learned District Munsif, taking into

consideration the fact that the suit has been filed nearly about

10 years ago, granted opportunity to the plaintiff to lead

evidence but the plaintiff had not taken that opportunity and

finally filed I.A.No.1126 of 2016.

6.Later, the learned District Munsif had proceeded further

by questioning the very appointment of the Advocate Commissioner

and stating that it was the duty of the parties to the suit to

prove their case to lead evidence. That part of the order

requires to be interfered with.

7.Primarily, the Advocate Commissioner had already been

appointed and therefore, the District Munsif cannot go around

and question the necessity to seek appointment of an Advocate

Commissioner. What is now sought is only for a direction to the

Advocate Commissioner to revisit the property and to file a

better report with measurements of the lay of the land.

8.Therefore,