D S MARIAPPAN Vs. N MANOHARAN

JUDGEMENT

(1.) THE revision petitioners in C.R.P.No.3257 of 2000 are the defendants in the suit. THE revision petitioners in C.R.P.No.3548 of 2000 are the plaintiffs in the suit. Aggrieved by the order passed by the trial Court in I.A.No.718 of 2000, both the plaintiffs and the defendants have filed these two separate revisions.

(2.) THE plaintiffs filed I.A.No.718 of 2000 for appointment of a fresh Commissioner underO.26, Rule 9, C.P.C. THE averments contained in the affidavit are as follows: THE plaintiffs filed suit for declaration and possession. A Commissioner was appointed in I.A.No.244 of 1992. Against the order passed in the said I.A., a revision was filed in the High Court. THE High Court has directed the Commissioner to measure the properties with reference to old survey numbers and identify the extent of the suit properties i.e., 91 cents. When the plaintiffs filed a memo of instructions to the Commissioner to measure the properties in accordance with the directions of the High Court on 15.1.1998, the Commissioner refused to receive the memo of instructions and the said fact was also informed to the Court on 16.11.1998. THE Commissioner in violation of the terms and conditions contained in the C.R.P. order, has measured the properties and prepared the plan. THE plaintiffs also filed objections to the said report. But the Commissioner did not file any reply to the above objection. THErefore, the report of the Commissioner and plan filed in I.A.No.244 of 1992 should be scrapped and a fresh Commissioner has to be appointed. THErefore, the petition is filed to scrap the report filed by the Commissioner Selvaraj and appoint a fresh Commissioner and measure the properties and file the report with the assistance of a surveyor.

(3.) THE revision petitioners have raised the following contentions in this revision: THE scope of the Commissioner is only to identify the property owned by the petitioners and the respondent. A Commissioner was appointed in I.A.No.244 of 1992 and thereafter, a warrant was reissued to the Commissioner to file a report with the assistance of the Surveyor. THE trial Court directed the Commissioner to measure the entire extent of the land claimed by the respondents and the petitioners. THE second revision petition C.R.P.No.992 of 1997 was dismissed by this Court on 8.12.1997. After dismissal of the above C.R.P., no further order was passed and the present application i.e., I.A.No.718 of 2000 was filed belatedly to appoint a fresh Commissioner. When the Commissioner has inspected the property several times and submitted several reports and plans, there is no justification to appoint a fresh Commissioner to carry out the same work. THE trial Court should have seen that without scrapping and setting aside the report of the Commissioner, a fresh Commissioner cannot be appointed. THE trial Court has acted in a mala fide manner because the Commissioner who has been appointed by the Court is a junior counsel attached to the office of the advocate for the respondents i.e., Plaintiffs. THErefore, the order passed in I.A.No.718 of 2000 is liable to be set aside.