GOPALAKRISHNAN Vs. P SHANMUGAM

JUDGEMENT

(1.) Having regard to the nature of the issues involved for consideration in the miscellaneous petition as well as in the, main revision being one and the same, the revision itself is taken up for final hearing.

(2.) The revision has been filed by the defendant/ respondent in the Courts below against the 'order of the learned District Munsif, Mayiladuthurai dated 18-7-1994 made in I.A. No. 1571 of 1994 in O.S. No. 301 of 1994 allowing the claim of the respondent herein and directing- the appointment of the taluk surveyor of Mayiladuthurai taluk to inspect the, suit property in question and submit a report. It is seen that the plaintiff has earlier filed an application for the appointment of a surveyor to inspect and submit a report and the respondent has also filed another application for appointing an Advocate-Commissioner to note the physical features in the suit property and file a report. The Advocate Commissioner appears to have submitted a report after inspection and the surveyor appointed at the instance of the respondent also filed his report. Thereupon, the respondent appears to have taken out an application for re-issuing the warrant to the same surveyor to file a further and additional report. Though initially the application was said to have been opposed, the petitioner also thereafter was willing to have the communique re-issue to the surveyor and the same was said to have been ordered. But the respondent did not pursue steps in that regard to have the warrant re-issued to the same surveyor, but instead came out with the application in question in. I.A. No. 1571 of 1994 seeking for the appointment of a fresh surveyor on the ground that the surveyor earlier appointed may not do his work impartially in view of the earlier defective and perfunctory report he was said to have filed. This application has been opposed by the petitioner herein.

(3.) After considering the claims of the contesting parties before the Court below, the learned District Munsif, by an order dated 18-7-1994 allowed the application as instead of the earlier surveyor, appointed the Taluk surveyor of Mayiladuthurai taluk for the purpose, of inspection and submitting a report. This order is challenged on the ground that the Court below has committed a grave error in allowing the application without coming to a conclusion regarding the existence of the necessary required pre-requisite to warrant rejection of the earlier reports on record and that there the order under challenge cannot be sustained. It is also contended that the reasons assigned in paragraph 5 of the order are no reasons in the eye of law justifying the appointment of a new Commissioner in the teeth of already existing two reports in the matter, one submitted at the instance of the petitioner through an Advocate Commissioner and the other submitted at the instance of the respondent through a Surveyor Commissioner. The learned counsel for the respondent vehemently contended that the order of the Court below does not call for any interference since the reason assigned in the order justified the appointment as prayed for by the respondent and that such appointment came to be made only on the representation that the respondent may not get an impartial treatment in the matter, if the earlier surveyor alone is directed to re-do the matter. He further conceded that the petitioner would not in any manner be prejudiced by the appointment of the surveyor in question and that it will be in the interest of all the parties concerned to have the commission issued and proceeded with, as ordered by the Court below.