Trial court must allow reissuance of commissioner's warrant if report has discrepancies, ensuring fair opportunity to prove case.

ORDER

Challenging the impugned order passed in I.A.No.224 of 2024 in I.A.No.

490 of 2021 in O.S.No. 78 of 2014, by the Additional District Munsif Court, Chidambaram, the revision petitioners/plaintiffs preferred this Civil Revision Petition.

2. Considering the relief claimed challenging the order passed by the trial judge, notice to the respondents is dispensed with.

3. Before the trial court, the revision petitioners have filed the application to set aside the Commissioner’s report and to reissue the Commissioner warrant to the commissioner with the help of surveyor and to file a report and plan with clarity. On hearing both sides, the trial judge dismissed the application.

4. The learned counsel for revision petitioners would submit that on seeing the commissioner's report, he has not executed the warrant properly and there is a necessity to reissue the warrant to the same Advocate Commissioner by setting aside the earlier report. But, the trial court was not inclined to allow the said application holding that in order to drag on the proceedings, the plaintiffs came forward with the said application and they wanted to get the report in their favour. Aggrieved over the said findings, they have preferred this Civil Revision Petition and they prayed to set aside the findings of trial judge.

5. On seeing the facts, it reveals that in the year 2014, the revision petitioners filed a suit for declaration and also to remove the encroachment. They have filed an application to appoint an Advocate Commissioner and to measure the property, but the Surveyor has not exercised his duty properly and they found that there is discrepancy in the Commissioner's report. So, they wanted to reissue the warrant to the Advocate Commissioner. But, the trial judge was not inclined to give such opportunity. If opportunity is not given, the revision petitioners/plaintiffs would not able to prove the relief to remove the encroachment as they prayed in the suit. According to the revision petitioners, some survey numbers was not mentioned, however, they have also filed the application before the trial court with regard to the Commissioner's report. So, if the warrant is reissued, no prejudice would be caused to the respondents/defendants and the revision petitioners/plaintiffs have to prove their case with regard to the relief of encroachment. If they have found that there is discrepancy in the commissioner’s report, they themselves entitled to file objections. Therefore, this Court is inclined to set aside the order passed by the Additional District Munsif, Chidambaram in I.A.No. 224 of 2024 in I.A.No. 490 of 2021 in O.S.No. 78 of 2014. The trial judge is directed to reissue the warrant to the Advocate Commissioner as prayed by the plaintiffs by giving notice to other side. Both parties are directed to cooperate with the proceedings and the Advocate Commissioner is directed to measure the property and file a report. Accordingly, this Civil Revision Petition is allowed. No costs.