KANDASAMY Vs. THE UNION OF INDIA

JUDGEMENT

(1.) CONSIDERING the nature of the order to be passed in this Revision Petition, coupled with the fact that the respondents have expressed no objection for allowing I.A. No. 1108 of 2011, there is no need to issue notice to them. The plaintiff in O.S. No. 621 of 2008, on the file of the District Munsif Court, Namakkal, is the revision petitioner herein. He filed the suit for declaration and injunction. During the pendency of the suit, he filed an application, viz., I.A. No. 1036 of 2008, for appointment of an Advocate Commissioner to inspect the suit property with the help of Taluk Surveyor and to measure 'A' schedule property and to note the physical features. The said application was allowed and an Advocate Commissioner was appointed. Later, the said application was closed, on 29.11.2010, as the Advocate Commissioner did not file any report, within the time stipulated by the Court below. Thereafter, the revision petitioner filed another application, I.A. No. 1108 of 2011, to re -open I.A. No. 1036 of 2008, for appointment of Advocate Commissioner and to direct the Advocate Commissioner to submit the report with plan. As the Advocate Commissioner has already inspected the property, that application was also allowed and the Commissioner was directed to submit the report with the plan. As the Advocate Commissioner did not submit the report, I.A. No. 1108 of 2011, was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed.

(2.) THE learned counsel appearing for the revision petitioner submitted that, as directed by the Court below, the revision petitioner has paid remuneration to the Commissioner, who also inspected the property earlier, but he has not filed the report. Therefore, instead of appointing another Commissioner to inspect the property, the Court below directed the very same Commissioner to file report along with plan. On account of the failure on the part of the Commissioner to submit the report, revision petitioner cannot be penalized by dismissing the application. Therefore, the order of the Court below is liable to be set aside.

(3.) I am unable to understand how a party can compel the Advocate Commissioner to file the report. Similarly, it also not understandable how the party can be punished for the default committed by the Advocate Commissioner in not filing the report. The Court below, instead of directing the Advocate Commissioner to file the report within the time stipulated or canceling the warrant issued to the earlier the Advocate Commissioner and issuing a fresh warrant to a new Advocate Commissioner, ought not to have dismissed the application filed by the revision petitioner on the ground that the revision petitioner has not taken any steps to get the report filed by the Advocate Commissioner.