R JUSTIN ARULAPPA Vs. R XAVIER ARULAPPA

JUDGEMENT

(1.) This Civil Revision Petition is filed by the 1st defendant against the order dated 21.4.2009 passed in I.A. No. 98 of 2009 in O.S. No. 54 of 2009 by the learned II Additional Sub Judge, Nagercoil.

(2.) The 1 st respondent/plaintiff has filed the above said suit for declaration of plaintiff s title and recovery of possession of the plaint schedule property from the defendants and to direct the 1st defendant to pay the arrears of licence amount of Rs. 90,000/- for the usage of the schedule mentioned property with 12% interest per annum. Pending the suit, the 1st respondent has filed the said application for issuance of commission for local investigation of the schedule mentioned property in relation to certain points stated by the 1 st respondent in the said application. The allegations made by the 1 st respondent is that the petitioner has annexed certain portion of land with the property of the petitioner on the western side and issuance of commission is filed to segregate the annexed portion from the petitioner's possession and for mesne profits for the usage of the disputed portion.

(3.) Strangely, though the Court below has observed in its order that a commission cannot be issued to separate the schedule mentioned property, to assess the mesne profits and to fix the rent for the building, however, it appointed an Advocate Commissioner for the purposes as required by the 1 st respondent. Admittedly, the appointment of the Advocate Commissioner was without even notice to the petitioner. Though it is not obligatory on the Court to issue notice to the other side before issuing commission, but natural justice requires that such an order should not be passed without notice to one of the parties.