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Madras High CourtCRP/315/2024dismissed

Rashmi Jain v. Arulmighu Om Kaliamman Kovil

2024-02-22Honourable Mr Justice V.Sivagnanam5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.02.2024

CORAM

THE HONOURABLE MR. JUSTICE V.SIVAGNANAM Rashmi Jain ... Petitioner Vs.

Arulmighu Om Kaliamman Kovil, Kaveri Road, Karungalpalayam, Erode 3 rep. By its Hereditary Trustee and Present Executive Balakrishnan ...Respondent PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and final order dated 14.09.2023 in I.A.No.3 of 2023 in OS No.41 of 2022 on the file of the Principal District Munsif, Erode.

For Petitioner : Mr.M.Guruprasad

O R D E R

The civil revision petition is filed to set aside the fair and final order in I.A.No.3 of 2023 in OS No.41 of 2022 dated 14.09.2023 on the file of the Principal District Munsif, Erode.

2. The revision petitioner is the defendant and the respondent is the plaintiff in OS No.41 of 2022 on the file of the learned Principal District Munsif, Erode. The respondent/plaintiff has filed the suit for permanent injunction against the petitioner/defendant. Pending suit, the petitioner/defendant had filed an application in IA No.3 of 2023 for appointment an advocate commissioner to note down the physical features in and around the plaint schedule property. The trial court, by order dated 14.09.2023, had dismissed the said application on the ground that commissioner is not necessary to collect evidence and it can be proved by letting oral and documentary evidence. Challenging the said order, the petitioner has filed the present civil revision petition.

3. Learned counsel for the petitioner submits that in order to measure the pathway in the plaint schedule property, a commissioner has to be appointed and hence seeking to allow the Revision.

4. Heard the learned counsel for the petitioner and perused the materials available on record.

5. On a perusal of the records, the fact reveals that the respondent filed the suit for permanent injunction against the petitioner herein in OS No.41 of 2022. In the said suit, the petitioner had filed an application in IA No.3 of 2024, for appointment of an advocate commissioner to measure the length and breadth of the pathway in the plaint schedule property. Admittedly, the petitioner has not filed any counter claim before the court below claiming right of pathway over the plaint schedule property. Under such circumstances, appointment of an advocate commissioner for the purpose of noting down the pathway over the property is unwarranted. If any pathway is existing over the plaint schedule property, it can be proved

by letting oral and documentary evidence. Commissioner has to be appointed only to clarify any evidence already before the Court and for the purpose of collecting new evidence, commissioner need not be appointed. Therefore, I find no infirmity in the impugned order passed by the trial court. There is no grounds to interfere with the impugned order. There is no merit in the Revision. Hence, the civil revision petition is dismissed. There shall be no order as to costs. Consequently, CMP No.1460 of 2024 is closed.

22.02.2024 Index: Yes/No Internet: Yes/No mrn To The Principal District Munsif, Erode.

V.SIVAGNANAM , J.

(mrn) 22.02.2024