KOVILMANI Vs. NAVAMANI

JUDGEMENT

(1.) The revision petitioner / plaintiff has laid the suit in O.S.No.19 of 2013 for declaration and permanent injunction. As seen from the records, it is found that on the application filed by the revision petitioner seeking for appointment of Advocate Commissioner, an Advocate Commissioner was appointed to inspect the suit property and to note down its physical features etc., and accordingly, it is found that the Advocate Commissioner having filed his report, the said application in I.A.No.974 of 2013 came to be closed. It is found that thereafter, the suit had been listed for trial on 09.04.2015. At that stage of the matter, the revision petitioner had preferred an application in I.A.No.457 of 2015 to condone the delay in filing objections to the Commissioner's report. The above said application was allowed on 13.08.2015. Thereafter, it is seen that the revision petitioner has preferred an application in I.A.No.1016 of 2015 for scrapping the report of the Advocate Commissioner and for re-issuing the commission warrant again to another Advocate to inspect and measure the suit property. The said application was hotly contested by the respondents / defendants. The Lower Court, on a consideration of the facts and circumstances of the case, dismissed the above mentioned application. Challenging the same, the present civil revision petition has been preferred by the revision petitioner / plaintiff.

(2.) The only reason given by the revision petitioner / plaintiff for scrapping the report of the Advocate Commissioner and for re-issuing commission warrant again to another Advocate to inspect and measure the suit property is that the earlier Advocate Commissioner has acted in a biased manner and thereby had not properly measured the suit property by fixing points and further according to the revision petitioner, the Commissioner's Report and the Surveyor's Report are found to be contradictory and further the Commissioner's plan and the Surveyor's plan are also found to be inconsistent with each other and inasmuch as the Commissioner had not measured the suit property by taking note of the fixed points, according to the revision petitioner, the Commissioner had filed report with defects and in such circumstances, it is his contention that the report of the Advocate Commissioner has to be scrapped and the commission warrant has to be re- issued to another Advocate for completing the task.

(3.) The respondents / defendants have pleaded that the Commissioner has inspected and measured the suit property with the help of a qualified surveyor and also in the presence of both parties and accordingly, it is stated that the Commissioner had with the help of the Surveyor had fixed the relevant points before measuring the suit property and accordingly, measured the suit property and filed his report with plan and therefore, according to the respondents / defendants, the contention of the revision petitioner that the Advocate Commissioner had acted in a biased manner while measuring the suit property and filed a defective report cannot be accepted and further according to the respondents / defendants, the present application has been preferred by the revision petitioner / plaintiff only to delay the trial proceedings and hence, the said application is liable to be dismissed.