Inveighing the order dated 13.10.2008 passed in I.A.No.45 of 2008 in O.S.No.37 of 2008 by the Principal Sub Court, Erode, this civil revision petition is focussed.
2. The epitome of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition, would run thus:-
The revision petitioners/plaintiffs filed the suit O.S.No.37 of 2008 before the Principal Sub Court, Erode, for declaration and permanent injunction in respect of the immovable property, by making the following prayers in the plaint:
"(a) to declare that the first plaintiff is the absolute owner of the suit 'A' schedule properties;
(b) to grant a consequential permanent injunction against the defendants their men, agents and assigns from trespassing into the suit 'A' schedule properties or interfering in any manner with the 1st plaintiff's peaceful possession and enjoyment of the same.
(c)to declare that the 2nd plaintiff is the absolute owner of the suit 'B' schedule properties.
(d) to grant a consequential permanent injunction against the defendants their men, agents and assigns from trespassing into the suit 'B' schedule properties or interfering in any manner with the 2nd plaintiff's peaceful possession and enjoyment of the same."
During the pendency of the said suit, the I.A.No.45 of 2008 has been filed for getting the Commissioner appointed for the purpose of visiting the suit property, so as to find out the physical features of the same. However, after hearing both sides, the lower Court dismissed the said application. Being disconcerted and aggrieved by the order of the lower Court, this revision is focussed by the plaintiffs on various grounds.
3. Despite printing the name of the counsel for the respondents, there is no representation on behalf of the respondents.
4. The learned counsel for the revision petitioners, placing reliance on the grounds of revision, would advance his argument setting forth that the lower Court misdirected itself by assuming and presuming as though the said application is for the purpose of culling out evidence in support of the plaintiffs; on the contrary the said application is purely for the purpose of noting the physical features of the suit property, so that the Court would be in a position to appreciate the evidence that would be adduced on either side.
5. A bare perusal of the order of the lower Court with reference to the typed set of papers would highlight and spotlight, evince and evidence that the said order of the lower Court is far from satisfactory. In the affidavit, accompanying the I.A.No.45 of 2008, the plaintiffs expressed their intention to place the physical features of the suit property before the Court by getting a Commissioner appointed in that regard. But the lower Court misapplied the proposition of law as though the plaintiffs are trying to gather evidence in their favour with the help of the Commissioner. Gathering evidence with the help of a Commissioner is entirely different from seeking appointment of Advocate Commissioner to note the physical features and there is an abysmal difference between the two.
6. The learned counsel for the revision petitioners/plaintiffs also would appropriately and convincingly put forth his argument that the defendants filed written statement portraying as though the suit property is a barren land, but it is not so. Whereas, if the Commissioner is appointed he would be able to note the physical features; whereupon the Court would be able to appreciate the oral and documentary evidence that would be placed before it in a much better manner. Hence, in this view of the matter the order of the lower Court dated 13.10.2008 passed in I.A.No.45 of 2008 in O.S.No.37 of 2008 by the Principal Sub Court, Erode, is set aside by allowing this civil revision petition and consequently, the I.A.No.45 of 2008 shall allowed. No costs. Connected miscellaneous petition is closed.
Msk To The Principal Sub Court, Erode