(Prayer: Petition filed under Article 227 of the Constitution of India, to set aside the fair and final order dt. 30.11.2022, passed by the District Munsif Court, Sankari, made in IA No.1126/2016 in IA No.30/2012 in OS No.295/2010)

1. This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order made in IA No.1126/2016 in IA No.30/2012 in OS No.295/2010, dated 30.11.2022, on the file of the District Munsif Court, Sankari, wherein the application for re-issuance of the warrant to the Advocate Commissioner to revisit the property and to file a report along with the plan, came to be rejected by the Court below.

2. The petitioner is the plaintiff, who filed the suit in OS.No.295 of 2010, seeking for the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property and not to damage or dismantle the crops.

3. During the pendency of the above suit, IA.No.30 of 2012 came to be filed by the defendants under Order XXVI Rule 9 of CPC, for appointment of an Advocate Commissioner to inspect the property, measure the same and to submit a report along with a plan. This application was allowed and a report was submitted by the learned Advocate Commissioner.

4. The petitioner filed I.A.No.1126 of 2016, for re-issuance of warrant and for a direction to the Advocate Commissioner to measure the property by identifying the boundaries and to submit a report along with a plan. This application came to be dismissed by the Court below by an order dated 23.01.2017.

5. Aggrieved by the above order, the petitioner filed CRP(PD).No.1178 of 2017. This CRP(PD) was allowed by an order dated 23.02.2022 and the relevant portions are extracted hereunder:

                   8.Therefore, I would interfere with the order of the District Munsif, and instead of directing the warrant to be reissued, let me remit the matter back, since all the respondents are not present here. Therefore, this matter is remitted back to the District Munsif Court, Sankari to rehear the application and the learned District Munsif should examine it purely as an issue to be decided on facts and by applying the law on such facts.

                   9.The learned District Munsif should not enter into a discussion whether a Commissioner is actually required since that stage has already crossed and a judicial order already passed. The said discussion could have been indulged when appointment of an Advocate Commissioner in I.A.No.30 of 2012 was sought and not in an application seeking to reissue the warrant. Therefore, the learned District Munsif, Sankari is directed to rehear the parties and pass fresh order on merits.

                   10.With the above observations, this Civil Revision Petition is allowed. The matter is remitted back for fresh hearing of I.A.No.1126 of 2018. No costs. Consequently, connected miscellaneous petition is closed.

6. Pursuant to the above order, IA.No.1126 of 2016 was remitted back to the file of the District Munsiff Court, Sankari and the Court below has once again rejected the application on the ground that already objections have been raised by the petitioner/plaintiff and the Advocate Commissioner can be examined as a witness in this case and therefore there is no ground to reissue the warrant for the Advocate Commissioner to revisit the property and to submit the report. Aggrieved by this order, the present Civil Revision Petition has been field before this Court.

7. The respondents have been served with notice and their names have also been printed in the cause list and there is no representation either in person or through counsel.

8. The main objection that was raised on the side of the petitioner/plaintiff is that the Advocate Commissioner has not properly measured the property by taking note of the boundary stones and not even a plan was submitted along with the report. Hence, the petitioner wanted the Advocate Commissioner to revisit the property and to identify the boundaries and to take note of the physical features and submit a report along with a plan.

9. The Court below has rejected the application on the ground that the objections have already been given and the Advocate Commissioner can be examined as a witness.

10. In the case in hand, the report has been filed by the Advocate Commissioner even without a plan. Apart from that the objection is regarding the manner in which the Advocate Commissioner has inspected the property. That is exactly the reason why this Court allowed the earlier CRP and remitted the matter back to the file of the District Munsif Court, Sankari. If the objections are enough for questioning the report of the Advocate Commissioner, this Court would have dismissed the earlier CRP and there was no need for remitting the matter back to the Trial Court.

11. The Trial Court has not properly appreciated the purpose for which the petitioner/plaintiff is seeking for revisit of the Advocate Commissioner. In view of the same, the order passed by the Court below is perverse and it requires the interference of this Court. Accordingly, the order passed in IA.No.126 of 2016 dated 30.11.2022, is set aside and there shall be a direction to the Court below to reissue the warrant and direct the Advocate Commissioner to properly identify the boundaries and submit a report along with a plan.

12. In the result, this Civil Revision Petition is allowed and there shall be a direction to the District Munsif, Sankari, to dispose of the suit in OS.No.295 of 2010, within a period of four months from the date of receipt of a copy of the order. No costs. Consequently, connected miscellaneous petition is closed.