The revision petitioners/plaintiffs have filed the civil revision petition as against the order dated 10.08.2006 passed in I.A.No.496 of 2006 in O.S.No.40 of 1984 by the District Munsif, Krishnagiri, in dismissing the application filed under Order XVI, Rule 9 of C.P.C. praying for appointment of an advocate commissioner to inspect the petition mentioned property and to submit his report along with plan.
2.The trial Court, while passing orders in I.A.No. 486 of 2006 has inter alia observed that the matter is pending for cross examination of P.W.1 and at that time, the application for appointment of an advocate commissioner has been filed with a view to protract the proceedings and that the suit has reached the stage of final enquiry and has resultantly dismissed the application.
3. The petitioners/ plaintiffs in their affidavit in I.A.No. 486 of 2006 have inter alia mentioned that to clarify the contentions of parties and the earlier commissioner report which do not mention the length of the colony first road and to avoid future trouble, appointment of an advocate commissioner is sought for to measure the entire colony first cross road from the western edge of colony east parallel road upto the eastern field line of S.No. 804 i.e. upto the western dividing line of S.Nos. 805 and 804 etc. So that the entire length of 650 feet declared by the municipality as public road can be identified separately for each survey number, and in particular in S.No. 805 and that they have come to know about the declaration made by the municipality only recently and to avoid documentary evidence, the application for appointment of an advocate commission is sought for in the interest of justice.
4. The respondent/ third defendant in his counter before the trial Court has among other things avered that the revision petitioners/ plaintiffs have already taken out a commission even in the year 1984 and these documents were not produced before the commissioner and therefore, the petitioner cannot pray for appointment of an advocate commissioner for establishing their case and further that by summoning the records from the Krishnagiri municipality, the contentions of the revision petitioners can be proved and that the application for appointment of an advocate commissioner has been filed belatedly and therefore, has prayed for dismissal of the application.
5. It is to be noted that the appointment of an advocate commissioner is within the discretionary domain of the Court of law. As a matter of fact, when a party is in a position to produce the best evidence and when he can substantiate his case by letting in evidence, this Court is of the considered view that he cannot gather or procure evidence by means of appointment of an advocate commissioner. Moreover, this Court opines that the revision petitioners/ plaintiffs can establish their case through the documents they rely upon by adducing oral and documentary evidence in the manner known to law. Viewed in that perspective, this Court is of the view that the application filed by the revision petitioners praying for appointment of an advocate commissioner is only a luxury and not a case of necessity and in that view of the matter, the civil revision petition fails and the same is hereby dismissed.
6. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, M.P.No. 1 of 2007 is also dismissed. The order passed by the trial Court in I.A.No.486 of 2006 in O.S.No. 40 of 1984 is affirmed for the reasons assigned by this Court in this revision. Since P.W.1 is to be cross examined before the trial Court in the main case and the suit is of the year 1984, this Court as a equitable remedy, directs the trial Court to dispose of the main suit within a period of four months from the date of receipt of a copy of this order and to report compliance without fail. The parties are directed to lend their co-operation in regard to the completion of trial of the proceedings before the trial Court.
ra To The District Munsif Court, Krishnagiri