The revision has been filed by the plaintiff in the suit, challenging the order passed in I.A.No.382 of 2008, wherein the court below has appointed a Commissioner to note down the physical features of the suit property at the instigation of the first defendant in the suit.
2.The suit has been filed by the petitioner in O.S.No. 215 of 2007, on the file of District Munsif, Pudukottai for specific performance. Pending the suit, an application in I.A.No.382 of 2008, has been filed by the defendant, claiming that in order to establish the suit property for cultivation, an appointment of Commissioner is necessary. Accordingly, the Commissioner was appointed and he has also file a report. Challenging the same, the revision has been filed.
3.As rightly contended by the petitioner, the court below ought not to have appointed a Commissioner to note down the physical features at the trial stage and at the instance of the defendant in a suit filed by the plaintiff, seeking a relief for specific performance. Further, a reading of the affidavit filing in support of the petition in I.A.No.382 of 2008, would show that the defendant is certainly trying to collect the evidence. The order passed by the Court below is also not based upon any legal principle. The learned counsel relied upon a judgment reported in 2008(3) CTC 597 in K.M.A.Wahab and five others vs. Eswaran and another, in support of his case that a party cannot be allowed to seek an appointment of Commissioner to collect evidence. The learned counsel also relied upon a judgment reported in (2009) 2 MLJ 769 in Ambrose and another vs. Neelamegam, wherein, the Hon'ble High Court has held that an appointment of Commissioner in a suit for specific performance is not necessary to value the property.
4.The present case on hand, unfortunately, the Commissioner has visited the suit property and filed his report. The Commissioner's report is nothing but a peace of evidence and it is for the court to appreciate the value of the Commissioner's report. Even though, in a suit for specific performance the report of the Commissioner is not necessary. In view of the fact that the Commissioner has already filed a report, this court is of the opinion that the revision deserves to be dismissed.
5.However, it is made clear that the Court below shall not look into the Commissioner's report unless, the court feels that the same is required for the purpose of deciding the issues raised in the suit. With this observations, the revision is disposed of.
6.The trial court is directed to dispose of O.S.No.215 of 2007, pending on the file of District Munsif, Pudukottai within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, the connected M.P is also closed.
ns To The District Munsif, Pudukottai.