JEYABALAN Vs. LAKSHMI AMMAL

JUDGEMENT

(1.) THE civil revision petitioners/petitioners/D.1 and D.2 have projected this civil revision petition as against the order dated 19.1.2009 in I.A.No. 322 of 2008 in O.S.No. 24 of 2008 passed by the learned Subordinate Judge, Arupukottai in dismissing the application filed by the revision petitioners/petitioners under Order 26, Rule 9 of the Code of Civil Procedure praying for an appointment of an Advocate Commissioner to inspect the suit property and to find out as to whether the suit property is a lanthal house or a house constructed by applying centring etc., and to submit a detailed report with a plan.

(2.) THE trial Court while passing orders in I.A.No. 322 of 2008 has come to the conclusion that the appointment of an Advocate Commissioner to inspect the suit property in order to find out whether the suit house is a lanthal house or a concrete house is not necessary and resultantly dismissed the application with costs.

(3.) THE learned counsel for the revision petitioners urges before this Court that the trial Court has assigned the reason that I.A.No. 322 of 2008 praying for an appointment of a Commissioner is a belated one which cannot be sustained in the eye of law and that the ingredients of Order 26, Rule 9 of the Code of Civil Procedure have not been looked into by the trial Court in a proper perspective and moreover, there is no question of gathering evidence by a party, when the relief sought for in the interlocutory application is only for an appointment of an Advocate Commissioner and according to the defendants, the house is not a lanthal house but it is a concrete and cement house built by the defendants predecessor and in any event, the order passed by the trial Court is an erroneous one and requires to be set aside in the interest of justice.