Pre-trial advocate commissioner for property inspection permissible in injunction suits to aid adjudication without prejudice.

ORDER

Challenging the impugned Order passed by the trial Court in I.A.No.3 of 2024 in O.S.No.587 of 2024, the present Civil Revision Petition has been preferred by the defendants.

2. The plaintiff/respondent had filed the suit for permanent injunction restraining the defendants from interfering with the peaceful enjoyment of the suit property by the plaintiff and for permanent injunction restraining the defendants for usage of the cart track by the plaintiff. Pending suit, the plaintiff had filed an application for appointment of an advocate commissioner to visit the property and to note down the physical features and to take photographs of the suit property. The respondents have objected the application by filing counter. The trial Court, considering the submissions on either side, had allowed the application. Aggrieved over the same, the defendants had preferred this revision.

3. The learned counsel appearing for the petitioners would argue that the respondent/plaintiff has not even pleaded where the alleged common cart track lies or runs through the landed properties and he is attempting to establish an easement by not even setting up the foundation of an easement of necessity in the plaint. It is his further contention that the respondent has not filed any document to prove the extent of the alleged passage and the trial Court without considering all these aspects had erroneously allowed the application which has to be set aside.

4. Whereas, it is the contention of the learned counsel for the respondent that after selling his properties, he had retained a small portion of the property and that the defendants, who are real estate people had purchased the property and developed the same and they are attempting to encroach upon the cart track passage. Hence, he had filed an application for appointment of an Advocate Commissioner to note down the physical features and take photographs of the property and the same has been considered by the trial Court, which requires no interference.

5. A perusal of records reveals that the plaintiff has come forward with a suit for permanent injunction that there should not be any interference in their enjoyment of the common passage and for that purpose, he wants to appoint an Advocate Commissioner to note down the physical features of the property.

The said application was objected by the defendants stating that the plaintiff has not filed any document to prove the existence of the alleged passage in the suit property. Admittedly, as on date, the case is pending trial and before commencement of trial, the plaintiff had filed the application for appointment of an Advocate Commissioner. Hence, no prejudice would be caused to the petitioners if the Advocate Commissioner files a report with regard to the physical features of the property and the report of the Advocate Commissioner will infact help the trial Court in adjudicating the issues between the parties. The petitioners are at liberty to file their objections. Hence, the Order of the trial Court needs no interference.

6. Accordingly, this Civil Revision Petition is dismissed. No costs.

The petitioners are at liberty to raise all their objections by filing objections or filing additional written statement. Consequently, connected miscellaneous petition is closed.