S SUBRAMANIAN Vs. D EKAMBARAM

JUDGEMENT

(1.) THIS civil revision petition is directed against the order dated 05.06.2009 in I.A.No,5042 of 2009 in O.S.No,2279 of 2007 on the file of the XII Assistant City Civil Court, Chennai whereby and whereunder the application filed by the revision petitioner for appointment of Advocate Commissioner was dismissed.

(2.) THE suit in O.S.No. 2279 of 2009 was preferred by the revision petitioner against the respondents praying for a judgment and decree of declaration and consequential injunction in respect of the suit property. THE suit was contested by the respondents by filing written statement wherein they have disputed the right, title interest and possession with respect to the suit property. THE respondents have also taken a contention that there was an earlier suit in O.S.No,438 of 1997 filed by them on the file of the VII Assistant City Civil Court, Chennai and the suit was decreed and it was also confirmed as per the judgment and decree dated 29.09.2006 in A.S.561 of 2009. Since there was a clear finding in the earlier suit with respect to the ownership and possession claimed by the respondents with respect to the suit property, the present suit was not maintainable.

(3.) THE suit in O.S.No,2279 of 2009 was instituted by the revision petitioner praying for a decree of declaration and injunction. THErefore the primary burden was on the petitioner to prove that the suit property belongs to him. In such a suit and especially on account of the fact that there was no dispute with respect to the identity of the property, it was not necessary to appoint the Advocate Commissioner. According to the learned counsel for the revision petitioner, the respondents are making construction in the property and in case during the pendency of the suit, if third party interest would creep in, it would further complicate the matter. However that cannot be a reason for issuance of Advocate commission. THErefore the petitioner is not entitled for appointment of Advocate Commissioner in the present suit.