The Civil Revision Petition is filed by the first defendant challenging the order and decreetal order dated 20.7.2009 passed in I.A.No.482 of 2009 in I.A.No.1244 of 2008 in O.S.No.229 of 2008 on the file of the Principal Sub Court, Erode.
2. The respondent/plaintiff filed the suit O.S.No.229 of 2008 for partition of the suit property by demarcating a plot and for mandatory injunction.
3. In the suit O.S.No.229 of 2008, the revision petitioner, first defendant filed I.A.No.1244 of 2008 for appointment of advocate commissioner to note down the physical features of the suit property. A report dated 5.6.2009 has been filed along with sketch. The first defendant, the revision petitioner filed objection to the commissioner's report.
4. Thereafter, the revision petitioner, the first defendant filed another I.A.No.482 of 2009 praying to scrap the report of the commissioner filed in I.A.No.1244 of 2009 and to reissue the commissioner warrant to the same commissioner. The reason for filing such application was with regard to a portion of the report which reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED The above statement in the report is not an inspection report, but it is an opinion given by the advocate-commissioner and therefore, the report has to be scraped. The I.A.No.482 of 2009 was opposed by the respondent/plaintiff.
5. The court below stating that the commissioner comes from agricultural family has rich experience and therefore, his report need not be scraped. Aggrieved thereby, the revision petitioner, the first defendant filed this Civil Revision Petition.
6. A perusal of the portion of the commissioner's report as above, clearly establishes the fact that it is not a report on an inspection, but an opinion based on his rich experience and intellectual capacity. The commissioner also states about his knowledge about the particular place. The very basis of filing commissioner report is to give the court the necessary material about the property as it exists at the time of inspection. The opinion of the advocate commissioner is not necessary for the adjudication of the suit and is therefore, not required to be stated. This is clearly an error to that extent. On this score, the plea of the learned counsel for the revision petitioner has to be accepted. However, as rightly pointed out by the learned counsel for the respondent, the plaintiff, the other portion of the report can be taken into consideration for adjudication of the suit excluding the portion which is objected. There is no necessity to reissue the warrant to the same commissioner when other necessary particulars are available.
7. In the result, the following portion in the commissioner's report:
VERNACULAR (TAMIL) PORTION DELETED is deleted. The Commissioner's report excluding the above said portion can be taken into consideration for disposal of the suit. The Civil Revision Petition is allowed to the extent indicated above. Both the parties agree for expedite disposal of the suit and the same is recorded. No costs. Consequently, connected miscellaneous Petition is closed.
ts To The Principal Sub Court, Erode