R NANDAKUMAR Vs. DINDIGUL CO OP HOUSING BUILDING

JUDGEMENT

(1.) CHALLENGE in this Revision is to the Order in I.A. No.24 of 1999 in A.S. No. 26 of 1999 dismissing the Petition filed Under Or.26, Rule 9 CPC and declining to appoint Advocate-commissioner in the first Appellate Court.

(2.) THE suit property originally belonged to the Petitioner-Appellant. He sold it to the Respondent-Society by a sale deed dated 16.07.1966. THE entire extent of T.S.No.1958/B2 was sold by the Petitioner-Appellant to the Respondent - Plaintiff-Society under the said sale deed dated 16.07.1966 and is said to have handed over possession of the entire extent of property on the date of sale deed. According to the Respondent-Plaintiff Society, the said lands were divided into several house sites as per the Approved layout by the Director of Town and Country Planning in DTP No.10/1968 and Dindigul Municipality in R.O.C.No.6856/67 dated 27.04.1971 and the scheme was named as Anna Nagar. THE Society has been dealing with the lands and the house sites were sold out and the purchasers have also constructed buildings.

(3.) CHALLENGING the impugned Order, the learned counsel for the Revision petitioner has submitted that for substantial cause, the first Appellate Court has power to receive additional evidence. Placing reliance upon 1994-2-L.W.376 (M. Ayyaswami and another v. S.P. Ganesan and another) and (2001 10 Supreme Court Cases 619 (State of Rajesthan V. T.N. Sahani and others), the learned counsel for the Revision petitioner has submitted that application for appointment of Commissioner and whether to receive additional evidence under Or.41, Rule 27 CPC should have been decided along with the Appeal. It was further argued that had the court found appointment of Advocate-commissioner is necessary to pronounce the Judgment in the Appeal in a more satisfactory manner, it would have allowed the same and if not the same could have been dismissed at that stage and therefore, the impugned order is liable to be set aside.