MARIA SELVARAJ Vs. MATHIAS AND THIRUVATTAR PRIMARY AGRICULTURAL CO-OPERATIVE RURAL DEVELOPMENT BANK REP BY ITS SECRETARY

JUDGEMENT

(1.) The petitioner is the first defendant in O.S. No. 141 of 2006, on the file of the Subordinate Court, Padmanabhapuram. He filed the suit for specific performance of a contract on the strength of a sale agreement executed by this defendant, dated 10.10.2004. The first respondent/plaintiff filed the suit. He also filed an application under Order 26 Rule 9 of Civil Procedure Code, for appointment of an Advocate Commissioner to inspect the suit property and to file a report, after measuring and locating the schedule items 1 to 3, as per the sale deeds of the defendants and also resurvey the plan .

(2.) In the affidavit, he stated that in the nature of the case, the Commissioner's evidence is necessary to measure the available area in schedule items 1 to 3.

(3.) The petition was resisted by this petitioner in his counter, by stating that the application has been brought about after a long delay and that there is no necessity for appointment of an Advocate Commissioner. It is further alleged that the sale agreement clearly state the area and the well-defined boundaries which coincide with the admitted plaint schedule properties and there is no clause either to measure the property after the agreement or to decide the reduced area and it is for the plaintiff to check and measure the property prior to the agreement. It is also mentioned that if the Commissioner is appointed, it will change the nature of the suit and may create a new cause of action and it will lead to further amendments in the pleadings.