This Civil Revision Petition has been filed by the defendants against the order passed in I.A.No.800 of 2005 in O.S.No.1881 of 2004 where an application has been filed by the plaintiff seeking appointment of Commissioner to note down the physical features of the suit properties.
2. Being aggrieved by the order of the Court below in allowing the said application, the defendants have preferred this Civil Revision Petition.
3. The learned Counsel for the petitioners submitted that the reason said in the affidavit for seeking appointment of Commissioner cannot be the basis for the order of appointment. According to the learned Counsel for the petitioners, in a suit for damages, it is for the plaintiff to prove his case. The learned Counsel for the petitioners further submitted that merely, based upon the written statement of the petitioners, the application for appointment of Commissioner cannot be filed.
4. I have heard the arguments of the learned Counsel for the petitioners as well as the respondent.
5. The Trial Court has ordered the application of the petitioner for appointment of Commissioner on the ground that the same is necessary for deciding the issue between the parties. The Trial Court has also held that there is no dispute with regard to the identity of the property and the machineries belonging to the plaintiff. Hence, when the Court below gives a finding that the appointment of Commissioner is necessary, then this Court finds that such an order does not warrant any interference under
Article 227 of the Constitution of India.
6. The learned Counsel for the petitioner relied upon the judgment in T.K.Krishnamurthy v. Tamil Nadu Water and Drainage Board and another reported in 2006-4-L.W. 178. On a perusal of the said judgment, it is seen that the relief sought for in the said case was one of permanent injunction restraining the defendants from interfering with the said possession. Therefore, it was correctly held by the Honourable High Court that in a suit for permanent injunction, the appointment of Commissioner in the normal circumstances, cannot be appointed to collect evidence. In the present case, the suit being one of recovery of damages and in view of the stand taken up by the petitioners that the machineries are very much available, but with considerable damage, this Court finds that there is no ground to interfere with the order passed by the trial Court.
7. Hence,the Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous petition is closed. No Costs.
ssl To The District Munsif Judge, Tiruchirappalli.