Madras High CourtCRP/4460/2023allowed

Subramaniam v. Janarthanan

2023-12-13Honourable Mrs Justice T.V.Thamilselvi4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :13.12.2023 CORAM :

THE HON'BLE MRS. JUSTICE T.V. THAMILSELVI Civil Revision Petition No.4460 of 2023 and CMP.No.26929 of 2023 Subramaniam ... Petitioner

Versus

1.Janarthanan 2.Subramania Gounder 3.Jawahar 4.Gangammal 5.N.Balamurugan 6.The District Collector Tiruppur District, Tiruppur.

7.The Tahsildar Udumlalpet Taluk, Udumalpet.

8.Dhandapani ... Respondents Civil Revision Petition filed Under Article 227 of Constitution of India, praying to set aside the order dated 03.10.2023 made in I.A.No.1 of 2023 in O.S.No.308 of 2017 on the file of the Subordinate Judge, Udumalpet. For Petitioner :

Mr. K.Srinivasan 1\4

O R D E R

The petitioner has filed this petition to set aside the order dated 03.10.2023 made in I.A.No.1 of 2023 in O.S.No.308 of 2017 on the file of the Subordinate Judge, Udumalpet.

2. Heard Mr. K.Srinivasan, the learned counsel appearing for the petitioner and perused the materials available on record.

3. Before the trial Court the petitioner has filed an application under Order XXVI Rule 9 of CPC to appoint Advocate Commissioner and the same was dismissed by the learned trial Judge holding that to prove the possession evidence and collection of evidence, the Commissioner cannot be appointed. Aggrieved the same the revision has been preferred by the revision petitioner.

4. To prove the encroachment made by the respondents, the petitioner has filed an application, so far as the trial has not begun and the petitioner / plaintiff is entitled to prove his claim before the trial Court. Since he approached the Court for the relief of declaration in respect of the suit property, if at all, any encroachment can be made and the same can be proved by the Advocate Commissioner's report, and it will minimize the burden of the 2\4

Court.

5. Therefore, this Court is inclined to set aside the findings rendered by the learned trial Judge in I.A.No.1 of 2023 in O.S.No.308 of 2017. I.A. is allowed and the learned trial Judge is directed to appoint the Advocate Commissioner within a period of two weeks from the date of receipt of a copy of this order and also directed to dispose of the case as early as possible.

6. Accordingly, this Civil Revision Petition is allowed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs. 13.12.2023 Index : Yes/No Speaking/Non Speaking order rri To

1. The Subordinate Judge, Udumalpet.

2.The Section Officer, VR-Section, High Court of Madras.

T.V.THAMILSELVI, J.

rri 3\4

Civil Revision Petition No.4460 of 2023 and CMP.No.26929 of 2023 13.12.2023 4\4