The petitioner/plaintiff has filed this civil revision petition as against the order dated 29.04.2009 in I.A.No.6 of 2009 in A.S.No.134 of 2008 passed by the learned Subordinate Judge, Tiruchengode in dismissing the application filed by the revision petitioner/plaintiff under Order 26 Rule 9 and Section 151 of C.P.C. praying for appointment of an Advocate Commissioner to note down the physical features and find out whether the pipeline existing in the suit cart track or not and file his report and plan.
2.To avoid an avoidable delay, this Court dispenses with the issuance of notice to the respondents in the interest of justice.
3.The First Appellate Authority, while passing orders in I.A.No.6 of 2009, has come to the conclusion that 'on perusal of court records and in the trial Court commissioner was appointed to note down the physical features and the existence of cart track in the middle of the property and the trial Court after full trial considering the evidence, documents and commissioner report, dismissed the suit that there was no cart track as alleged and the application for appointment of commissioner to find out whether the pipeline is in existence is nothing but additional evidence and that he is not entitled to the benefit under Order 41 Rule 27 of Civil Procedure Code and dismissed the application without costs.'
4.The learned counsel for the revision petitioner contends that the First Appellate Authority has committed an error in dismissing the I.A.No.6 of 2009 praying for an appointment of an Advocate Commissioner without properly considering the facts and circumstances of the cases and in fact, the first respondent/first defendant has laid the pipeline in suit cart track only on 19.10.2008 during the pendency of appeal and therefore, the Commissioner has to be necessarily appointed to find out the existence of a pipeline in the common cart track and as a matter of fact, the revision petitioner/plaintiff is seeking the relief of appointment of an Advocate Commissioner only to note down the subsequent events after the delivery of the judgment by the trial Court and at any stage of the proceedings an Advocate Commissioner can be appointed and even assuming that the filing of the report by the Commissioner in appeal proceedings amounts to reception of additional evidence, an I.A.No.6 of 2009 is maintainable as per Order 41 Rule 27 C.P.C. because the respondent has laid the pipeline only during the pendency of the appeal and that too only on 19.10.2008 and unfortunately these aspects of the matter have not been adverted to by the trial Court in a proper manner and therefore, prays for allowing the civil revision petition in the interest of justice.
5.Admittedly, the revision petitioner/plaintiff has sought the relief of mandatory injunction in the suit in regard to the common cart track and also prayed for the permanent injunction.
6.After contest, the Appellate Authority has dismissed the suit on merits and as against the judgment and decree passed in O.S.No.283 of 1999 by the trial Court, the revision petitioner/appellant has preferred A.S.No.134 of 2008 on the file of the Subordinate Court, Tiruchengode and the same is pending. During the pendency of the appeal in A.S.No.134 of 2008, I.A.No.6 of 2009 has been filed praying for an appointment of an Advocate Commissioner.
7.In the affidavit filed in I.A.No.6 of 2009 by the revision petitioner/appellant/plaintiff, it is specifically averred that the respondent and his servants are again on 19.10.2008 laid a pipeline underground of the suit cart track it is against law and also against the terms of the partition deed dated 15.11.88 and therefore, the said pipeline laid on 19.10.2008 has to be removed and therefore, the present application has been filed for appointment of an Advocate Commissioner to note down and find out the existing pipeline in the suit cart track or not and except this method, the revision petitioner has no way to prove the existing pipeline which has been laid on 19.10.2008.
8.In the counter filed by the first respondent adopted by the second respondent in para 3, it is categorically averred that 'the underground pipeline were laid by this respondent in his land several years before, that too before filing of the suit itself and under these circumstances, the allegations of the petitioner that this respondent laid a pipeline on 19.10.2008 in the alleged suit cart track, which is not existing, is an utter false and put forward at a belated stage with a malafide intention to harass this respondent and to protract the proceedings and further that the application lacks bona fide.'
9.It is an axiomatic fact that an appeal is a continuation of proceedings in law and admittedly, A.S.No.134 of 2008 is pending on the file of the Subordinate Court, Tiruchengode. Though an endeavour has been made on the side of the revision petitioner/plaintiff that the respondents and his servants have again on 19.10.2008 laid a pipeline underground of the suit cart track and it is against the terms of the partition deed dated 15.11.88 etc., the same has been denied in the counter filed by the first respondent and adopted by second respondent to the effect that the underground pipeline has been laid by the first respondent in his land several years that too before the filing of the suit itself and as against this categorical denial of the respondents, no reply affidavit has been filed by the revision petitioner/plaintiff before the First Appellate Court.
10.A Court of Law has the power to appoint an Advocate Commissioner by exercising its discretion. Earlier the trial Court in the suit has come to the conclusion that the cart track is not there in the suits spot and given a finding against the revision petitioner/plaintiff since an appeal is a continuation of proceedings in law and in view of the fact that A.S.No.134 of 2008 is pending, this Court is not expressing any opinion will affect the rights of parties one way or other in a pending matter before the learned First Appellate Authority.
11.As far as the present case is concerned, this Court is of the considered view that an application I.A.No.6 of 2009 filed by the revision petitioner/plaintiff is only a redundant one and not a case of necessity in view of the fact that the respondents have taken a specific plea that underline pipelines have been there in the land several years before a filing of the suit itself and in that view of the matter, this Court comes to the conclusion that the application for appointment of an Advocate Commissioner is a supernumerary or a surplusage and in that view of the matter, the civil revision petition sans merits and the same is dismissed.
12.In fine, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed in I.A.No.6 of 2009 is affirmed. Since the appeal is pending before the learned Subordinate Court, Tiruchengode, the First Appellate Authority is directed to dispose of the main appeal within a period of two months from the date of receipt of copy of this order and to report compliance to this Court without fail. Consequently, connected miscellaneous petition is closed.
To
1.The Subordinate Judge, Tiruchengode.