G M RAJAGOPAL Vs. NAGARATHINAM

JUDGEMENT

(1.) THE petitioner/plaintiff has filed this Civil Revision Petition as against the order dated 04. 08. 2009 in I. A. No. 8719 of 2009 in O. S. No. 4909 of 2008, under order 26 Rules 9 and 10 of Civil Procedure Code praying for appointment of an advocate Commissioner to measure the suit property with the help of Taluk surveyor by relying on the Field Map Book and other records.

(2.) THE trial Court while passing order in I. A. No. 8719 of 2009 dated 04. 08. 2009 has inter alia opined that already an Advocate Commissioner was appointed in I. A. No. 11388 of 2008 who has inspected the suit property and filed the report on 18. 09. 2008 and that the said I. A was closed and the said report of the Advocate Commissioner is on record and the same has not been scrapped and further there has been no request for re-issue of the Commissioner Warrant to inspect the suit property with the help of Taluk Suveyor in accordance with the Field Map Book and other records as prayed for and moreover there is no explanation on the side of the petitioner/plaintiff as to how this application being successive in nature, is maintainable and moreover when the suit itself is for the relief of a bare injunction, the petitioner/plaintiff has not given any reason either convincing or compelling for the appointment of an Advocate Commissioner for the second time and found no merits in the application and resultantly, dismissed the said application, without costs.

(3.) ACCORDING to the learned counsel for the revision petitioner/plaintiff, the trial Court has committed an error in observing that i. A. No. 8719 of 2009 has been filed in successive nature when the petitioner has not sought for appointment of an Advocate Commissioner to measure the suit property which has already been measured by the Advocate Commissioner in i. A. No. 11388 of 2008 in O. S. No. 4926 of 2009 and the fact remains that the revision petitioner has filed O. S. No. 4909 of 2008 and the subject matter of the suit has to be adjudicated by the Court and added further the petitioner has assigned reasons in I. A. No. 8719 of 2009 for appointment of an Advocate commissioner and earlier report has not elicited the correct boundaries of the suit property and therefore, the revision petitioner has projected I. A. No. 8719 of 2009 before the trial Court and also that the trial Court has failed to appreciate that the petitioner and the respondent are the adjacent owners and without measuring suit property of the revision petitioner, the Court cannot completely and fairly adjudicate the dispute/controversy involved in the suit, but these aspects of the matter have not been adequately appreciated by the trial Court in a real perspective which has resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in the interest of justice.