B.V. Anantha Rao O v. Byrappa

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 07.04.2015 Coram THE HON'BLE MR. JUSTICE M.DURAISWAMY C.R.P.(PD) No. 1392 of 2015 & M.P.No.1 of 2015 B.V.Anantha Rao .. Petitioner/Defendant .. Vs ..

Byrappa .. Respondent/Plaintiff Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India against the fair and final order passed in I.A.No.33 of 2015 in O.S.No.40 of 2010 on the file of the Subordinate Court, Hosur at Krishnagiri.

For Petitioner : Mr.R.Jayaprakash

O R D E R

Aggrieved over the fair and final order passed in I.A.No.33 of 2015 in O.S.No.40 of 2010, on the file of Sub Court, Hosur, the defendant has filed the above Civil Revision Petition. 2.The plaintiff filed a Suit in O.S.No.40 of 2010, for specific performance. When the said Suit was taken up for trial, the defendant filed an Application in I.A.No.33 of 2015, seeking for appointment of an Advocate Commissioner to note down the boundaries as per sale deed dated 28.5.1969 and also as per the suit sale agreement dated 03.05.2008. The said Application was opposed by the plaintiff by stating that filing of the Application by the defendant seeking appointment of Advocate Commissioner amounts to gathering of evidence through Advocate Commissioner. The trial Court after taking into consideration of the case of both parties, dismissed the Application, finding that there is no necessity for appointment of Advocate Commissioner in the Suit for specific performance.

3.On a perusal of the materials available on record, it could be seen that the Plaintiff* contended that the properties mentioned in the sale deed 28.5.1969 and the property mentioned in the Suit Sale Agreement dated 03.05.2008 are different. When the defendant has taken such a stand before the trial Court, the burden of proof lies only on the plaintiff to establish his case by oral and documentary evidence. The defendant cannot collect evidence https://hcservices.ecourts.gov.in/hcservices/

through Advocate Commissioner. That apart, in a Suit for specific performance, the appointment of Advocate Commissioner is totally unwarranted. The trial Court taking into consideration of these aspects rightly dismissed the Application and I do not find any error or irregularity on the order passed by the trial Court Accordingly, the Civil Revision Petition is devoid of merits and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar(CS-II) Dt.13.04.2015 Amended as per order dated 05.06.2015 in CRP (PD) No.1392 of 2015 & MP.No.1 of 2015 //True Copy// Sd/- Assistant Registrar(CS-II) dt. 10.06.2015 Sub Assistant Registrar rpa To 1.The Subordinate Judge, To be Substituted to the order Hosur at Krishnagiri.

already despatched on 11.03.15 1 cc to Mr.R.Jayaprakash, Advocate, SR.No.27108* C.R.P.(PD) No. 1392 of 2015 kk(co) pmk.16.4.2015 Eu 10.06.2015 https://hcservices.ecourts.gov.in/hcservices/