CRP(PD)(MD)No.1179 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(PD)(MD)No.1179 of 2022 and
CMP(MD) No.4840 of 2022
1.O.Paraman
2.C.Katturaja
3.M.Raman ... Petitioners
Vs
Chinnan (Died)
1.C.Ochan
2.Panchayat President
Sitharevu Village Panchayat
Sitharevu Village,
Athur Taluk,
Dindigul District.
3.C.Markandan
4.C.Muthulakshmi
5.O.Amirtham
6.M.Selvi
7.P.Kannan
8.C.Parvathi ... Respondents
Prayer: Petition filed under Article 227 of the Constitution of India, to set
aside the fair and decreetal order dated 07.03.2022 made in I.A.No.1 of
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https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.1179 of 2022
2020 in A.S.No.23 of 2017, on the file of the Principal Subordinate Judge,
Dindigul.
For Petitioner : Mr.N.Balasubramanian
ORDER
This Civil Revision Petition is filed as against the fair and decreetal order of the learned Principal Subordinate Judge, Dindigul in I.A.No.1 of 2020 in A.S.No.23 of 2017.
2.The petitioners are the plaintiffs, who filed a suit for declaration and mandatory injunction in O.S.No.188 of 2009 against the respondents herein, before the District Munsif Court, Nilakottai. The suit was dismissed by the trial Court and as against the judgment and decree of the trial Court, the petitioner preferred an Appeal Suit in A.S.No.23 of 2017, before the Principal Subordinate Judge, Dindigul. In the Appeal Suit, the petitioners/plaintiffs have taken out an application in I.A.No.1 of 2020, for appointment of Advocate Commissioner, under Order XXVI Rule 9 of CPC and the same was dismissed by the Appellate Court, by referring the judgment of the Honourable Apex Court in AIR 1969 Madras 144, that the appointment of Commissioner in the Appeal is rarity and is seldom resorted 2/5 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.1179 of 2022 to. The Appellate Court further held that the appointment is not authorised by Order 41 Rule 27 of CPC and this is the case of Mandatory injunction, where this application is filed to gather the evidence in the appellate stage.
3.The learned counsel appearing for the petitioner submits that the Appellate Court rejected the application merely on the ground that the application is taken out in the appellate stage. According to the learned counsel for the petitioner there is no bar for appointment of Advocate Commissioner in the suit for injunction and as per Section 75 and Order 24 Rule 9 of CPC, the appointment of Advocate Commissioner at the appellate stage is permissible under law. For elucidating any matter in dispute, the appointment of Advocate Commissioner is permissible at any stage.
4.This Court considered the arguments and the grounds raised by the petitioners counsel on behalf of the petitioners. Since no adverse order is going to be passed as against the respondents, notice to them is dispensed with.
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5.The case of the petitioners/plaintiffs is that in view of the partition deed as well as the sale deed, the existence of pathway in the suit property is an established one. However, the respondents have denied the existence of the pathway contrary to their own documents. When the case of the plaintiffs is based on certain documents, they can very well establish their case through those documents, which are available with them. The appointment of Advocate Commissioner to gather evidence or to assist the parties to collect evidence is not permissible.
6.In view of the above, this Civil Revision Petition is dismissed at the admission stage itself. No costs. Consequently, connected Miscellaneous Petition is closed.
20.06.2022 Index : Yes / No. Internet : Yes / No. vrn To The Principal Subordinate Judge, Dindigul. 4/5 https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.1179 of 2022 B.PUGALENDHI, J.
vrn Order made in CRP(PD)(MD)No.1179 of 2022 20.06.2022 5/5 https://www.mhc.tn.gov.in/judis