NALLAN Vs. PONNUSAMY

JUDGEMENT

(1.) THE Civil Revision Petition is filed against the fair and decreetal order dated 02.02.2013 made in I.A.No.441 of 2012 in O.S.No.67 of 2008 on the file of the Principal District Munsif Court, Tiruchengode.

(2.) THE respondent herein as a plaintiff filed a suit in O.S.No.67 of 2008 for declaration of title and mandatory injunction. The defendants/revision petitioners herein has filed a written statement and contested the same. During the pendency of the trial, the plaintiff has filed an application in I.A.No.332 of 2008 for appointment of an Advocate Commissioner to inspect the property and file a report and the Commissioner has also inspected the suit property and filed his report. In pursuance of the same, both the parties filed their objections even in the year 2008. Again, the plaintiff/respondent has come forward with the application in I.A.No.441 of 2012 for appointment of a fresh Commissioner or to re -issue the warrant to the same commissioner to measure the suit properties. Resisting the same, the defendants/revision petitioners filed the counter. The trial Court, after hearing both sides, has re -issued the warrant to the same Commissioner and directed him to measure the suit property and to file a supplementary report, against which, the present revision petition has been preferred by the revision petitioners/defendants.

(3.) RESISTING the same, learned counsel for the respondent/plaintiff submitted that the suit has filed for declaration of title and mandatory injunction. Since the appointment of Commissioner is necessary for proper adjudication of the suit, the plaintiff has filed an application for appointment of Commissioner and the Commissioner was appointed and inspected the suit property along with surveyor and filed the report. It is further submitted that objections have been filed by both the parties. Since the report is not helpful for proper adjudication, the plaintiff has filed another application in I.A.No.441 of 2012 for appointment of a fresh Commissioner or re -issuing warrant to the same Commissioner to inspect the suit property. The trial Court has rightly re -issued warrant to the same Commissioner for filing the supplementary report. So no prejudice would be caused to the defendants. He further submitted that if the Commissioner's report is vague and silent, it is absolutely necessary for re -issuance of warrant to the same Commissioner. To substantiate his arguments, he relied upon the decision of the Madurai Bench of Madras High Court reported in : 2013 -1 -L.W. -656 (Subramanian v. Sermathangam) and prayed for dismissal of the revision petition.