DEVADOSS Vs. A DURAISINGH

JUDGEMENT

(1.) THE revision petitioner is the defendant in the suit. THE respondent/plaintiff filed an application under Order 26, Rule 9 CPC for appointment of an Advocate Commissioner to find out the fact that the respondent had given cable file a report in this regard. THE defendant filed objection District Munsif, Srivaikundam after hearing the parties allowed the application and appointed an Advocate Commissioner, and aggrieved against this, the present revision petition has been filed by the defendant.

(2.) HEARD the learned counsel for the parties.

(3.) I am of the view that there is some force in the contention raised by the revision petitioner/defendent. Perusal of the order passed by the Court below, only indicate that the burden is upon the decree holder to establish his contention and as such appointment of a Commissioner is absolutely necessary. As adverted to, the plaintiff filed the suit to restrain the defendant from giving cable connection to a particular area and ultimately they entered into a compromise. In fact the suit itself cannot be said to be maintainable because none of them have obtained any license from the competent authorities and the parties themselves cannot choose any particular area and prevent others from giving cable connection. The plaintiff had also not filed any record to show that he had obtained a regular license to have a cable connection in a particular area. This being so, now decree to prevent the defendant from giving cable connection to certain areas. The authorities concerned were also not made as parties to the suit.