FAMILY MANAGER Vs. KATHASAMY

JUDGEMENT

(1.) This Civil Revision Petition is filed in order to challenge the order dated 08.11.2013 in an application filed under Order 26 Rule 9 C.P.C for appointment of an Advocate Commissioner.

(2.) The Revision Petitioner herein is the Plaintiff in the suit. The suit has been filed for a permanent injunction to restrain the Defendant therein / Respondent herein from interfering with the 2/3 rd share and rights of the Revision Petitioner/ Plaintiff in the well and water therefrom. It appears that the application for the appointment of an Advocate Commissioner was filed along with the plaint. In the affidavit in support of the said Interlocutory Application, the Revision Petitioner has stated that there is enmity between the Revision Petitioner and the Respondent and on account of that, the Respondent is preventing the Revision Petitioner from using the 2/3rd share of the well water which is required for watering the lands of the Revision Petitioner. The said interim application was opposed by the Respondent and eventually by the impugned order, the trial Court held that there is no necessity to appoint an Advocate Commissioner because there is no dispute over the identity of the property and that an Advocate Commissioner cannot be appointed for the purpose of collecting evidence.

(3.) At the hearing, the learned counsel for the Revision Petitioner submitted that after the filing of the suit, the Respondent herein constructed a wall over the pipeline and has thereby obstructed the use of the well water by the Respondent and that, therefore, it is just and necessary to appoint an Advocate Commissioner so as to inspect the property, take measurements and elucidate matters necessary for the disposal of the suit.