NITHYAKALYANI Vs. LAKSHMI

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed by the petitioner/defendant to set aside the Order dated 15.02.2008 in I.A.No.44 of 2008 in O.S.No.185 of 2006 on the file of the learned Principal Sub Judge, Chengalpattu.

(2.) THE defendant in O.S.No.185 of 2006 is the revision petitioner before this Court. THE suit in O.S.No.185 of 2006 has been filed by the respondents/plaintiffs for permanent injunction restraining the defendant from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property. Written statement has been filed by the petitioner/defendant and the suit is being contested. Pending suit an application in I.A.No.44 of 2008 was filed by the petitioner/defendant to appoint an Advocate Commissioner to inspect the suit property with the help of a Taluk Surveyor and submit his report with a sketch. THE said application was resisted by the respondents/plaintiffs by filing a counter. THE trial Court by order dated 15.02.2008 dismissed that application. Aggrieved by the same, the above civil revision petition has been filed.

(3.) THE learned Senior Counsel Mr. M. Muthukumarasamy, appearing for the petitioner submits that the suit for permanent injunction, has been filed by the respondents/plaintiffs. THE petitioner/defendant filed an application pending suit, to appoint an Advocate Commissioner to inspect the suit the property, in order to establish that the pathway, which is being used by the defendant, which is now claimed by the respondents/plaintiffs that they have not sold that strip of land to the petitioner and was retained by them. THErefore, the appointment of Advocate Commissioner is only to help the Court in arriving at a just conclusion. Whereas, according to learned senior counsel , the trial Court on a thorough misconception of the facts and law dismissed the application holding that the evidence available before the Court would be sufficient to establish the case and as the execution of the sale deed has been admitted, the same would be sufficient for arriving at a conclusion. By observing so the application is dismissed as not necessary by the trial Court. According to the learned Senior Counsel, this observation is wrong and he has relied on a Judgment in PR.Chockalingam Vs. M. Pichai and another reported in (2003) 2 M.L.J. 399), to submit that Advocate Commissioner could be appointed for the purpose of arriving at a just conclusion and if some clarification is required in respect of the identity of the property, the same could be clarified with the help of the local inspection by the Advocate Commissioner and it will not prejudice the respondents/plaintiffs.