Anim-adverting upon the order dated dated 18.2.2008 passed in I.A.No.12 of 2008 in O.S.No.105 of 2007 by the District Munsif cum Judicial Magistrate, Kodumudi.
2. A summation and summarisation of the facts, which are absolutely necessary and germane for the disposal of the civil revision petition, could be portrayed thus:
The respondent/plaintiff filed the suit O.S.NO.105 of 2007 seeking the following reliefs:
a) to grant an order of permanent injunction restraining the defendant his men and agents from trespassing into the suit property or interfering with the plaintiff's peaceful possession and enjoyment of the suit property in any manner;
b) to direct the defendant to pay the costs of the suit to the plaint.
During the pendency of the suit, IA.NO.12 of 2008 was filed by the petitioner/defendant with the following prayer:
Vernacular ( Tamil ) Records Deleted However, the trial Court dismissed the said application. Being dissatisfied with and aggrieved by the said order of the appellate Court, this revision is focussed by the defendant on various grounds.
3. The learned counsel for the revision petitioner/defendant would develop his argument to the effect that the petitioner/defendant did not want to fish out evidence, but in fact, wanted to enlighten the Court for proper adjudication only.
4. Whereas the learned counsel for the respondent/plaintiff would submit that the plaint averments as well as the sketch are clear and nothing has been highlighted that there is any dubious element involved in it for being clarified by appointing a Commissioner.
5. In these factual matrix, I am of the considered opinion that in a suit for permanent injunction so as to restrain the petitioner/defendant from interfering with the alleged rights of the respondent/plaintiff over a cart track, the Court should have a clear view of it. The respondent/plaintiff being the dominus litis as well as the party, who is bound to prove the case beyond doubt, has to very well put forth his evidence. However, when the petitioner/defendant comes forward to enlighten further the Court by placing before the Court the physical features, the Court is not justified in simply rejecting it as though it is one for fishing out evidence. I am at a loss to understand as to what evidence the petitioner/defendant was trying to fish out by getting appointed such a Commissioner.
6. Hence, in view of the above said circumstances, the order of the lower Court is set aside and the civil revision petition is allowed. The lower Court is directed to appoint a Commissioner with a mission to survey the suit property, measure the same and note down the physical features and report the same within a period of two months. No costs. Consequently, connected miscellaneous petition is closed.
Msk To
1.District Munsif cum Judicial Magistrate, Kodumudi