S ANTHONIDOSS Vs. SABESTHIYAN

JUDGEMENT

(1.) THE above revision has been filed by the plaintiffs- petitioners before the trial Court challenging the order of the learned Subordinate Judge, Kumbakonam, dated 23.11.1995 in I.A.No.450 of 1995 in O.S.No.231 of 1995, whereunder the application filed under Order 26 Rules 9 and 10 read with section 151 of the Code of Civil Procedure, for appointment of an Advocate-Commissioner to inspect the suit items 1 and 20 and note the physical features that may be pointed out at the time of inspection and to file a report, came to be rejected. THE case of the applicants before the Court below was that the second respondent has filed a counter stating that he has stored black metal etc. in the suit items 1 and 20 and it belongs to him, that the said materials used for building purpose and construction absolutely belonged to the plaintiffs, that such materials came to be stored by the plaintiffs long back and that the nature and condition and position of the materials will clearly reveal how old they are and what time it was stored. It is, therefore, to ascertain the abovesaid fact, according to the petitioners, the only way is to make a local inspection and it requires appointment of an Advocate-Commissioner to inspect and submit a report and the respondents will not be prejudiced by doing so.

(2.) THE second respondent has filed a counter affidavit stating that the object of filing such an application is only to drag on the proceedings and to prevent the respondents from enjoying suit items 1 and 20 and that there is no necessity for the appointment of a Commissioner since the respondents admitted that heaps of bricks and black metal are stored in the suit item No.2 contrary to the sale in favour of the second respondent. According to this counter-affidavit, the materials belonged to the first respondent, who sold and handed over the same to the second respondent along with the said item sold in his favour. It is stated further in the counter affidavit that the first respondent himself has admitted the same in the counter affidavit filed by him to the petition for temporary injunction and that, at any rate, the materials do not belong to the petitioners and since the existence of the materials is admitted, there is no need for the appointment of a Commissioner.

(3.) AFTER considering the submissions of the learned counsel appearing on both sides, the learned Subordinate Judge rejected the application on the view that the request for appointment of an Advocate-Commissioner need not be countenanced since the existence of the materials on the site in question is an admitted fact and therefore, there was no justification for the appointment of any Commissioner. Hence, the above revision.