SAKTHIVEL Vs. PAIANISAMY

JUDGEMENT

(1.) THE petitioner/plaintiff has filed this civil revision petition as against the order dated 14. 07. 2009 in I. A. No. 455 of 2009 in O. S. No. 309 of 2007 passed by the learned District Munsif, Tiruchencode in dismissing the application filed by the revision petitioner under Order 26, Rule 9 of Civil Procedure Code, praying for an appointment of an Advocate Commissioner to inspect the suit property and submit his additional report along with plan.

(2.) THE trial Court while passing orders in I. A. No. 455 of 2009 has inter alia opined that earlier the Advocate Commissioner has been appointed for which no objection has been filed and assigning the same reasons praying for reissuance of commission warrant are not based on bonafide reasons and also that it has been projected to protract the legal proceedings and resultantly, dismissed the application without costs.

(3.) ACCORDING to the learned counsel for the revision petitioner/ plaintiff, the trial Court has committed an error in dismissing the I. A. No. 455 of 2009 filed by the petitioner praying for reissuance of commission warrant and the said order is against law, weight of evidence and materially irregular one which is liable to be set aside by this Court sitting in revision and moreover, the trial Court without applying its mind the Court has observed that the petitioner has not filed his objections to Commissioner's report and plan filed in I. A. No. 971 of 2007 and added further, the trial Court has commenced the trial about a year ago but the application for warrant has been projected belatedly and moreover, the trial Court has not borne in mind of a simple fact that the present I. A. No. 455 of 2009 has been filed for measuring the revision petitioner and the earlier i. A. No. 971 of 2007 has only been filed to note down the suit Cart Track and in short, the relief prayed for in I. A. No. 971 of 2007 and I. A. No455 of 2009 are materially a different one, but unfortunately, these aspects of the matter have not been appreciated by the trial Court in a proper perspective, and therefore, prays for allowing the civil revision petition in the interest of justice.