Madras High Court
Varadharajan vs S.Paramasivam on 6 January, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.01.2015 CORAM THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA C.R.P.(PD)No.2183 of 2014 and M.P.(MD)No.1 of 2014 1. Varadharajan 2. Dayalan .. Revision Petitioners/ Defendants Vs. S.Paramasivam .. Respondent/Plaintiff Prayer: Petition is filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 04.08.2014 in I.A.No.218 of 2014 in O.S.No.19 of 2014 on the file of the Second Additional District Munsif Court. !For Petitioners : Mr.K.Sekar ^For Respondent : No Appearance :ORDER
The defendants in O.S.No.19 of 2014 on the file of the II Additional District Munsif Court, Tiruchirappalli have preferred the above Civil Revision Petition against the order of appointment of an Advocate Commissioner passed in I.A.No.218 of 2014.
2. Heard the learned Counsel for the petitioners. Though notice was served on the respondent and his name was printed in the cause list, no one appears on behalf of the respondent.
3. The plaintiff has filed the suit for permanent injunction restraining the defendants, their men and agents from any way interfering with the peaceful possession and enjoyment of the property in any manner except by due process of law. According to the plaintiff, he has been in possession of the property by cultivating paddy. In the affidavit filed in support of the petition, the plaintiff has contended that the Advocate Commissioner has to be appointed in order to prove his possession and the factum of cultivation. The defendants had contested the said application by stating that the Advocate Commissioner cannot be appointed to find out the factum of possession and enjoyment of the property and therefore, the said application is not maintainable. After contest, the learned II Additional District Munsif, Trichirappalli has allowed the application holding that unless the Advocate Commissioner is appointed, the factum of possession cannot be found out and also whether the lands are cultivating or not can be found out only by appointing the Advocate Commissioner. Further, the learned Judge held that no prejudice would be caused to the defendants by appointing the Advocate Commissioner.
4. It is settled principle that no Advocate Commissioner can be appointed to gather the evidence as it is legally unsustainable. The suit is being one for bare injunction, an Advocate Commissioner cannot be appointed to find out the factum of possession. Admittedly, the plaintiff has come out with the suit for injunction not to evict him unless due process of law. In the said circumstances, there is no need for appointment of Advocate Commissioner for finding out the factum of possession or the cultivation of paddy. Hence, the order of the learned II Additional District Munsif, Trichirappalli is not sustainable and the same is set aside.
5. Accordingly, the Civil Revision Petition is allowed. Consequently, the connected Miscellaneous Petition is closed. No costs.
06.01.2015 Index : Yes/No Internet : Yes/No To The II Additional District Munsif Court, Trichirappalli.
PUSHPA SATHYANARAYANA,J.
ssl C.R.P.(PD)No.2183 of 2014 and M.P.(MD)No.1 of 2014 06.01.2015