Heard the learned counsel appearing for the petitioners as well as the learned counsel for the respondent Nos.1 and 2.
2. A re'sume' of facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
The petitioners herein filed the suit in O.S.No.110 of 1996 in the Court of District Munsif, Thanjavur for removal of encroachment made by the first defendant in the 'B' Schedule property and for demolishing the super-structure and consequential delivery of vacant possession and also for permanent injunction so as to restrain him from interfering with the exclusive possession of 'A' Schedule property.
3. It so happened that I.A.No.911 of 2003 was filed before the trial Court for the appointment of an Advocate Commissioner to visit the suit property and measure it with the assistance of the surveyor and submit report. However, the Advocate Commissioner simply filed the report without the surveyor's sketch with details. No objection to it was filed by the petitioners herein as against the Advocate Commissioner's report.
4. Before the trial Court after the plaintiffs' side evidence, DW1 was also examined in chief and when the matter came up for cross-examining DW1, the plaintiff herein filed a fresh I.A.No.283 of 2005 for appointing once again the same Advocate Commissioner to visit the suit property and measure it with the assistance of the surveyor and submit report. The trial Court dismissed the said I.A.No.283 of 2005 on the main ground that instead of the plaintiff taking steps to summon the very surveyor, who accompanied the Advocate Commissioner, in visiting the suit property and measuring it, simply prayed for appointment of the same Advocate Commissioner for visiting the suit property and measuring it with the help of a surveyor.
5. The point for consideration is as to whether there is any infirmity in the order passed by the trial Court in dismissing the I.A.No.283 of 2005?
6.On point:
The learned counsel for the petitioners/ plaintiffs would submit that there would be no harm in directing the same Advocate Commissioner to visit the suit property and measure it with the help of a surveyor, so that the Advocate Commissioner would be able to file the Commissioner's report with the surveyor sketch and details prepared by him, whereas the learned counsel for the respondent Nos.1 and 2 would convincingly and correctly highlight that simply because the surveyor sketch with details was not enclosed along with the Commissioner's report, there would be absolutely no rhyme or reason to pray for fresh Commissioner to be issued for the same old purpose.
7. The trial Court correctly observed in its order that the plaintiffs had not taken steps to summon the said surveyor, who actually assisted the Advocate Commissioner in measuring the suit property. After correctly holding so, I am at a loss to understand as to why the trial Court simply kept quiet. It is axiomatic that in civil proceedings, the respective parties should take steps. However, in matters of this nature when the Court officer namely, the Advocate Commissioner committed defect in obtaining the surveyor's sketch with details, it is the duty of the trial Court to see that the Commissioner performs his duties. The Commissioner failed to obtain the surveyor sketch or report, whereupon the trial court suo motu ought to have directed the Commissioner to collect the sketch with details from the surveyor and file it in Court or the Court itself should have ordered the surveyor to appear before it and produce the sketch with details/report. If there is any difficulty, the surveyor's controlling authority concerned, should have been asked to appear before the Court and explain the position. Without resorting to such measures, simply the trial Court was not justified in blaming the parties. Hence, in these circumstances, I would like to modify the order of the trial Court as under: The trial Court shall issue suo motu needful and suitable direction to the surveyor concerned, wherever he might be working to appear before the trial Court and furnish the sketch with details/report and if there is any difficulty, as observed by me supra, his the then controlling authority shall be summoned and enforce compliance. Since, this is an old matter, the trial Court shall do well to see that the report is secured within a period of two months from the date of receipt of a copy of this order and report compliance.
8. With the above observations, the Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
smn To The District Munsif, Thanjavur.