PAPPAYEE AMMAL Vs. SUBBULAKSHMI AMMAL

JUDGEMENT

(1.) Mr. Sarvabhauman the learned counsel for the revision petitioner, contends that it is rather strange that the appellate Court had appointed a Commissioner when there is already in records a report of the Commissioner which was not attacked by the aggrieved appellants before the lower court, and in the circumstances, the order of the lower appellate Court is contrary to law. In this regard, he refers to the decisions reported in T. R. Rajagopala Iyer v. T. R. Ramachandra Iyer. and Arumugham v. Arumugham, 1979-1 Mad LJ 358.

(2.) In the instant case, before me, the petition was filed by the appellant in A. S. No. 132 of 1979 under O. 29. R. 9 and Ss. 94 and 151. Civil P.C. praying for appointment of a Commissioner for local inspection of the suit property. In the affidavit accompanying the petition I.A. No. 324 of 1981 it is inter alia stated on oath by Selvaraj, the second appellant, that a Commissioner was appointed in the trial Court and that he had filed his reports and plans. It is further stated in the affidavit that some features which were material were not actually noted in the report and that the measurements also had to be checked up. In the counter filed by Papayee Ammal, the plaintiff in the suit, it was inter alia contended that the alleged material physical features said to have been omitted to be brought to the notice of the Commissioner have not been disclosed in the petition, that the petition is devoid of merits or any particulars and that it is only a vague attempt to delay the matters.

(3.) On these representations by either side in the petition the lower appellate Court had made an order as follows:-