Animadverting upon the order dated 31.03.2008 passed by the learned I Addl. District Munsif Court, Erode, in I.A.No.883 of 2007 in O.S.No.366 of 2007, this civil revision petition is focussed.
2. Heard both sides.
3. A "resume" of facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
(i) The petitioners filed the suit O.S.No.366 of 2007 seeking the following reliefs:
(a) permanent injunction restraining the defendants from obliterating, obstructing or shifting the suit temple from its original place and pathway or interfering with the plaintiffs' peaceful right to use the temple to worship, celebrating festivals etc.;
(b) directing the defendants 2 and 3 to remove the block made at point "X" admeasuring 5 X 9 feet for the suit pathway and restore the same to its original position within a time stipulated by this Court and in case to failure to do son, an Officer of this Court may be appointed to carry out the work as per law;
(c)directing the defendants to pay the cost of the suit to the plaintiffs.
(ii) It appears that they filed one I.A.No.620 of 2007 for appointment of an Advocate Commissioner to note the physical features. Accordingly, the Advocate Commissioner visited the suit property and submitted his report. Subsequently the petitioners/plaintiffs herein filed I.A.No.883 of 2007 seeking to appoint one other Commissioner to effect measurements with the help of a qualified surveyor and also fix the boundary line between the land of the respondents and the suit pathway and file a report with plan. The lower Court dismissed it. Being aggrieved by and dissatisfied with such order of dismissal, this revision petition is filed on various grounds.
4. The learned counsel for the plaintiffs would develop his argument to the effect that the trial Court in a cryptic order simply directed the plaintiffs to prove their case without enabling them to place before the Court the actual physical features which are in existence as of now. Subsequent to the visit of the first Advocate Commissioner, there took place changes at the instance of the respondents/defendants; hence the order of the lower Court has to be set aside and the earlier Advocate Commissioner should be directed to revisit the property to carry out the measurement as contemplated in the I.A. filed by the petitioners.
5. Whereas, the learned counsel for the respondents/defendants would refute the prayer of the learned counsel for the petitioners and contend that already the Commissioner appointed visited the suit property and noted the physical feathers and submitted the report; for the reasons best known to the petitioners, they did not press that I.A. and given a go bye to the proceedings which emerged under the said I.A. and as an after thought, with ulterior motive they have chosen to file the fresh I.A.No.883 of 2007 so as to confuse the issue; it is for the plaintiffs to prove their case by seeking necessary declaration at the first instance, but that itself was not resorted to; a suit for bare injunction would not lie; the defendants clearly and categorically challenged the right of the plaintiffs to worship the said deity or lay claim over the said temple; and the plaintiffs do have no right of pathway as alleged in the plaint.
Accordingly, he prayed for the dismissal of the revision petition.
6. In this factual matrix, it is clear that earlier an Advocate Commissioner was appointed by the Court and he also submitted his report. In such a case, had really the petitioners endorsed the earlier I.A.No.620 of 2007 as not pressed, then such a course must be held to be one without legal backup. After the passing of the order by the Court, the question of not pressing the relevant I.A. on which the order was passed, does not arise at all and I am at a loss to understand as to how in this case the petitioners could have made such an endorsement and the Court also could have acted upon it. However the learned counsel for the petitioners would submit that the petitioners had not made any such endorsement. Be that as it may, it is a factual cum legal aspect which the lower Court should consider keeping my observation supra.
7. There is considerable force in the submission made by the learned counsel for the respondents/defendants that once the Commissioner after noting the physical features filed the report, the same could be looked into by the Court even now and there would be no necessity for ordering revisit by the same Commissioner to note the physical features once again; the question of measuring also does not arise; if at all as stated by the learned counsel for the petitioners subsequently changes had taken place which would have any bearing in the adjudication of the suit property, it is open for them to adduce evidence during trial and highlight the salient features before the Court. If the Court finds that it would be absolutely necessary to order revisit by the earlier Commissioner to note the additional physical features for the purpose of getting any clarification, then the Court is at liberty to do so G.RAJASURIA,J., gms suo motu or on the application of the petitioners. At this stage, I am of the view that there is no necessity to interfere with the order passed by the lower Court. Accordingly, with the above observation, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
12.01.2009 Index :Yes Internet:Yes gms To The I Addl. District Munsif Court, Erode C.R.P.(PD)No.1925 of 2008 and M.P.No.1 of 2008