Anim-adverting upon the order dated 29.7.2008 passed in I.A.No.2051 of 2007 in O.S.No.359 of 2005 by the District Munsif Court, Cuddalore, this revision petition is filed.
2. The facts giving rise to the filing of this revision petition, as stood exposited from the records, could be epitomised thus:
The respondent, as plaintiff, filed the suit O.S.No.359 of 2005 on the file of the District Munsif, Cuddalore, seeking the following reliefs:
"1) to declare the plaintiff's title to the suit 'B' schedule property.
2) to restrain the defendants, their men, agents and any person claiming under them, by a decree of permanent injunction from in any manner interfering with the plaintiff's possession and enjoyment of the suit 'B' schedule property.
3) to direct the defendants to demolish the encroached construction upon the 'C' schedule property within a time stipulated by Court and on his failure to do so, plaintiff may be permitted to demolish it and recover the cost;
4) to direct the defendants to pay the plaintiff the cost of the suit."
During the pendency of the suit, an Advocate Commissioner was got appointed by the plaintiff, with the mission to visit the suit property and measure the same with the help of the surveyor and submit his report.
3. According to the learned counsel for the respondent/plaintiff, the Commissioner also visited the suit property and measured the same with the help of the surveyor, after giving out notice to the petitioner/second defendant and he was also present at the time of measurement, but he failed to sign the inspection memo prepared by the Commissioner.
4. Whereas, the learned counsel for the revision petitioner/D2 would submit that only two days' notice was given by the Commissioner before visiting the spot and that the petitioner/D2 could not make himself available at the spot due to his preoccupation; the Commissioner report has not been filed and hence the revision petitioner/D2 filed I.A.No.2051 of 2007 seeking direction from the Court for ordering the Commissioner to revisit the property and measure the same with the help of the surveyor in the presence of the revision petitioner/D2, but that was dismissed unjustifiably and hence this revision.
5. In this factual matrix, I am of the considered opinion that one more opportunity could be given to the petitioner/D2 instead of delving deep into the fact as to whether on the relevant date the petitioner/D2 was present or not and whether two days notice given by the Commissioner was sufficient or not.
6. The suit itself is for declaration, recovery of possession and permanent injunction and in such a case measuring the suit property is of paramount importance and if murky or cloudy situation is allowed to continue, then through out the course of litigation, the revision petitioner/D2 would tend to harp on the same plea and it would to some extent hamper the discretion of the Court itself to decide firmly. I am of the considered opinion that it is just and necessary to dispel such uncertainty from the litigative process, by ordering revisit of the Commissioner and carry out the mission once again in the presence of the petitioner/D2.
7. The learned counsel for the petitioner/D2 also would come forward with the suggestion that the revision petitioner would pay the cost of revisit by the Advocate Commissioner.
8. I am of the view that certain costs also should be ordered to be paid by the revision petitioner/D2 to the respondent. Hence, in these circumstances, the order dated 29.7.2008 passed in I.A.No.2051 of 2007 is set aside and direction is hereby given to the effect that the same Commissioner shall to revisit the suit property with the help of the surveyor and measure the same in the presence of both the parties. A weeks notice shall be given to both sides, before such visit. The petitioner/D2 shall deposit a sum of Rs.1000/-(rupees one thousand only) before the lower Court within a period of three days from the date of receipt of copy of this order, so as to meet the expense of the Commissioner for such revisit and for measuring the suit property, and the petitioner/D2 also shall pay a sum of Rs.1000/-(rupees one thousand only) to the respondent/plaintiff as cost simultaneously. Accordingly, the matter shall be processed further.
9. The revision petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.
Msk To The District Munsif Court, Cuddalore