VELMURUGAN Vs. JOSEPH

JUDGEMENT

(1.) THE revision petitioner/respondent/first defendant has projected this civil revision petition as against the order dated 05. 09. 2008 in I. A. No. 1277 of 2008 in O. S. No. 393 of 2008 passed by the District Munsif cum Judicial Magistrate, Ambattur in appointing an Advocate Commissioner in an application filed by the respondent/petitioner/ plaintiff under Order XXVI Rule 9 of Civil Procedure Code.

(2.) THE trial Court in I. A. No. 1277 of 2008 has appointed Thiru. S. Krishnamoorthy as an Advocate Commissioner and has directed him to identify, inspect and note down the physical features of the suit property with the help of Taluk Surveyor and to file his report and directed the matter to be called on 14. 08. 2008.

(3.) ACCORDING to the learned counsel for the revision petitioner /first defendant, the order of the trial Court passed in I. A. No. 1277 of 2008 is contrary to law and that the present suit O. S. No. 393 of 2008 on the file of District Munsif-cum-Judicial Magistrate, Ambattur is not maintainable in law. Inasmuch as the relief sought for therein is hit by the principles of Order II Rule 2 of Civil Procedure Code and further that the respondent/plaintiff has filed the suit O. S. No. 3086 of 2008 on the file of VIII Assistant City Civil Court, Chennai and ought to have claimed the relief which he is presently claiming in O. S. No. 393 of 2008 on the file of District Munsif-cum-Judicial Magistrate, Ambattur and since the respondent/plaintiff has not sought all the reliefs arising from the same cause of action, a subsequent suit without the leave of the Court is clearly barred and the trial Court has not appreciated of the fact the prayer for appointing an Advocate Commissioner to identify the suit property is not in consonance with the relief claimed in the suit viz. , O. S. No. 393 of 2008 and for procuring evidence the Commissioner shall not be appointed and therefore, prays for allowing the revision in the interest of justice.