R. KARMEGAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE revision petitioners/petitioners/plaintiffs have filed this civil revision petition as against the order dated 13.7.2007 in I.A.No.963 of 2006 in O.S.No.549 of 2005 passed by the learned District Munsif, Madurai Town in dismissing the application filed under Order 26, Rule 9 of the Code of Civil Procedure, praying for an appointment of an Advocate Commissioner to inspect the suit property with the help of a land Surveyor and to note down the physical features, assessing the damages and to file a detailed report with a plan.

(2.) THE trial Court while passing orders in I.A.No.963 of 2006 on 13.7.2007 has inter alia observed that the application praying for an appointment of an Advocate Commissioner has been filed after a lapse of two years from the date of filing of the suit and further sufficient reasons have not been mentioned in the application for appointment of an Advocate Commissioner and moreover the averments in I.A.No.963 of 2006 can be established by means of adducing oral and documentary evidence and consequently, dismissed the application without costs.

(3.) THE learned counsel for the revision petitioners submit that the trial Court has not taken into account of the material fact that part of the suit relief praying for a relief of mandatory injunction in regard to the restoration of Karupannasamy Temple Building, Rakkayee Ammal Samadhi, well, motor room, electric motor pump set, oil motor, STD booth in the schedule property have been destroyed and damaged by the respondents and therefore, an appointment of an Advocate Commissioner to note down the aforesaid physical features is very much essential to prove the case of the revision petitioners/plaintiffs and moreover, the respondents have not filed any objection by means of counter against the appointment of an Advocate Commissioner coupled with a fact that the revision petitioners have made out a case for an appointment of an Advocate Commissioner and if an Advocate Commissioner is appointed much of the oral evidence to be let in a case will get reduced substantially and when the trial of the suit has not commenced, there is no delay in filing the application for appointment of Commissioner and in fact, the delay cannot be a ground for refusing to appoint an Advocate Commissioner and as a matter of fact, the trial Court has proceeded on the assumption that the revision petitioners have sought for an appointment of an Advocate Commissioner to prove their possession which in fact is not correct and therefore, prays for allowing the civil revision petition in the interest of justice.