V MUTHUSAMY ALIAS THINGARAJAN Vs. S SOUNDARARAJAN CHETTIAR

JUDGEMENT

(1.) PETITION under section 115 of Act V of 1908 praying the high Court to revise the order of the court of the District Munsif, Madurai taluk at Madurai dated 27. 3. 1989 and made in I. A. No. 1022 of 1988 in O. S. No. 927 of 1988. S. Subbaiah, for PETITIONer T. Srinivasan Raghavan , for Respondent. The Court made the following Order: This revision is directed against the order passed by the district Munsif of Madurai Taluk , on a memo filed by the Advocate-Commissioner.

(2.) THE facts which are necessary for the disposal of this revision can be briefly stated as follows: THE revision petitioner filed the suit O. S. No. 927 of 1988 a against the respondent for the relief of permanent injunction restraining the respondent and his men from digging pits adjoining the revision- petitioner's wall by accepting or breaking the revision- petitioner's eastern wall and causing damage to the revision petitioner's building. He also filed a petition for the appointment of a commissioner in I. A. N o. 362 of 1988 to make a local inspections of the suit property and note down the physical features on the revision- petitioner's eastern side of the Eastern wall and also the respondent's property on the-eastern side of the suit property. Accordingly an advocate-Commissioner was appointed and he after making a local inspection submitted a report. THE petitioner filed objections, raising two specific objections. He also filed I. A. No. 1022 of 1988 for the re-issue of the commission with a direction to clarify the two mistakes set out in the memo of objections and rectify the same. THE respondent agreed to the re-issue of the warrant and accordingly the court below directed re-issue of the warrant to the same Commissioner for the purpose of noting down the physical features as raised by the revision -petitioner in the objection to the commissioner's report and also to note down the physical features, if any, required by both the parties. At that stage, the commissioner filed a memo requesting the court to permit him to engage an Engineer in order to execute the warrant on the ground that the nature of the Commissioner's works involve the skill of an Engineer. THE Commissioner has further stated that the petitioner in his memo of instructions has requested the commissioner to find out the thickness of the petitioner's wall at certain points in the disputed wall. THE District Munsif passed no order to the effect that the Commissioner is directed to take the assistance of the qualified Engineer if necessary to execute the warrant. THE commissioner or Engineer should not give any opinion about the stability of ;the building. THE Commissioner was directed to state the nature, condition and state of affair of the building with the help of engineer. Aggrieved by the same, this revision is filed.