RAMURU GOUNDER Vs. ANDALAMMAL

JUDGEMENT

(1.) THIS civil revision petition filed by defendants 2 and 3 is against the dismissal order dated 1.8.1990 in I.A.No.204 of 1989 in A.S.No.183 of 1989 on the file of the Sub Court, Dharmapuri. The said A.S.No.183 of 1989 is the appeal against O.S.No.1135 of 1979. The said I.ANo.204 of 1989 is for appointment of a commissioner for noting down the physical features and measuring the suit property. The said I.A. was dismissed on the ground inter alia that earlier, even in the suit, a similar application viz., I.A.No.338 of 1987 was filed by the petitioners for appointment of a Commissioner and that it was dismissed on 25.10.1988. The petitioners did not choose to file any C.R.P. Against the said order. No doubt, even though no C.R.P. was filed, there is no bar for the petitioners to canvass the correctness of the said dismissal order in the above said appeal in view of Sec.105(1), C.P.C. Vide also Narayanan v. Krishnan, A.I.R. 1985 Mad. 3.

(2.) BUT what is contended before me in this C.R.P. by the learned counsel for the petitioners is only that the Court below should have heard the present I.A.No.204 of 1989 only along with the appeal and that the said I.A. should not have been disposed of even before hearing the appeal. This contention is advanced by him on the alleged premise that the said I.A. is in the nature of an application for reception of additional evidence under O.41, Rule 27, C.P.C., since the report of the Commissioner which he would file after executing the warrant of commission would be in the nature of additional evidence in the case. In support of this alleged premises, the learned counsel cited Rajagopala v. Ramachandra, A.I.R. 1969 Mad. 144. BUT actually that decision is against the premise. It only observes as follows:

(3.) THE learned counsel for the petitioner also relied on M.Mustaq Sheriff v. Zamrud Begum, 1984 T.L.N.J. 374, but the following observation therein is only against the petitioners: