This revision petition is filed by the first respondent/ 1st defendant in I.A.No.745 of 2013 in O.S.No.203 of 2013 on the file of the learned Principal District Munsif Court, Bhavani Taluk, Erode as against the order appointing an Advocate/Commissioner.
2. The suit property is situate in Olagadam Village in Erode District measuring about 0.75 acres. It was owned by the family of the Second Defendant. In a family partition dated 22.06.1994, the properties were divided amongst the sharers. The suit property and certain other properties fell to the share of the Second Defendant. By a registered sale deed, on 29.11.2000, the Second Defendant for himself and his Minor son sold the property to one Sengottaiyan, who in turn, sold the property by a registered sale deed, on 30.01.2012 to the plaintiff and the plaintiff has been in possession and enjoyment of the suit property.
3. Alleging that the First Defendant wanted the plaintiff to resell the suit property, since the plaintiff had refused, the First defendant had attempted to interfere with the plaintiff's possession of plaintiff on 18.06.2013, along with her henchmen. However, it was thwarted by the plaintiff, the plaintiff filed the suit for demarcating the property with the help of a Taluk Surveyor and for permanent injunction restraining the defendants from interfering with his possession of this suit.
4. Along with the plaint, plaintiff filed I.A.No.745 of 2013 for appointing an Advocate /Commissioner to identify the suit property with the help of a Taluk Surveyor and to fix the boundaries without giving notice to the other side the Trial Court appointed an Advocate/ Commissioner.
5. On coming to know about this appointment, the First Defendant has preferred this revision.
6. The learned counsel for the revision petitioner contended that the Trial Court has appointed the Advocate/Commissioner behind the back of the revision petitioner. He also contended that, without notice to the defendants, passing such an ex-parte order is against law. And there was no opportunity for the revision petitioner to disagree with the plaintiff on such appointment.
7. On the other hand, the learned counsel for the first respondent /Plaintiff would contend that the Trial Court had taken into account the existing situation and appointed an Advocate/ Commissioner. There is no flaw in it.
8. I have anxiously considered the rival submissions, perused the impugned order and the materials on record.
9. In this case, the impugned order reads as follows:
04.07.2013 "tHf;fwp"h; jpU/$p/ nkhfd; mthfs; ePjPkd;w Mizauhf epakdk; bra;ag;gLfpwhh;/ Mizah; ,U jug;gpdh;f;Fk; mwptpg;g[ bfhLj;J jhYhf;fh rhntah cjtpa[ld; jhthr; brhj;jpid mse;J. mjpy; Rw;Wg;g[w NH;epiyfs; kw;Wk; mjd; ,aw;if mikg;gfs; Fwpj;J ghh;itapl;L mwpf;if kw;Wk; tiuglk; jhf;fy; bra;a ntz;Lbkd;W cj;jutplg;gLfpwJ/ Mizah; Cjpakhf U:gha;/3.500-? eph;zak; braag;gl;L mjid kDjhuh MizaUf;F neuoahf brYj;j ntz;Lbkd;W cj;jutplg;gLfpwJ/ Mizahpd; mwpf;if kw;Wk;
tiuglk; jhf;fy; bra;a tha;jh".
10. It is not that the Trial Court has no power to appoint an Advocate/Commissioner even without notice to the other side or in the absence of other side. It depends upon the facts and circumstances of each case when the situation is such that such an order is emergently required to preserve the subject matter of the suit or to prevent further damage being cause to the suit property.
11. In the present case, the Trial Court has appointed an Advocate/Commissioner without notice to the other side, however, while doing so no reason has been given.
12. Without expressing any view on the merit of the matter, on the question as to appointment of an Advocate/Commissioner this matter is to be remitted back to the Trial Court for reconsideration. Advocate/Commissioner can be appointed even without notice to the other side. On the need could be considered by the referring to the affidavit filed by the petitioner and above referring to the pleadings and other corrected materials.
13. Now, it is ordered as under:
(i) This revision succeeds.
(ii) The impugned order passed by the learned Principal District Munsif, Bhavani, Erode District, in I.A.No.745 of 2013 in O.S.No.203 of 2013 is set aside.
(iii) I.A.No.745 of 2013 is remanded back to the Trial Court.
(iv) The Trial Court will give opportunity to the revision petitioner to file counter giving a reasonable time.
(v) Thereafter, the Trial Court shall hear both sides and dispose of the application according to law within a reasonable time.
(vi) No order as to costs. Consequently, connected M.P.No.1 of 2013 is closed.
24.03.2017 Index:no Internet:no Speaking order/Non Speaking order jrl/klt To
1. The Principal District Judge, Erode.
2. The Principal District Munsif Bhavani, Erode District.
Copy to The Director, Tamil Nadu State Judicial Academy, Green ways Road, Chennai - 28.
Dr.P.DEVADASS,J jrl/klt C.R.P.(PD). No.3803 of 2013 And M.P.No.1 of 2013 24.03.2017 http://www.judis.nic.in