Antony Muthu, v. Beno Roache,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.04.2015 CORAM :

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.PD.(MD).No.331 of 2015 and M.P.(MD) No.1 of 2015 Antony Muthu ... Petitioner/Petitioner/Plaintiff Vs.

1.Beno Roache 2.St.Joseph Leprosy Home, Arockiapuram, Tuticorin Through its Mother Superior 3.Selvakumar 4.Sankarraj 5.Subbulakshmi 6.Manthira Moorthy 7.Saraswathy 8.Subramaniyan 9.Selvaraman 10.Petchimuthu 11.Vion Michael Jegarthesh 12.Jon Selin 13.Joyselin 14.Farooq 15.Alexander Fernando 16.Muthu Krishnan 17.Balasubramaniyan 18.Ajitha 19.Saravanakumar 20.Mariappan Chettiyar 21.Paneer Selvam 22.Saikumar 23.Roselin Shanthi 24.Jeyaram 25.Kumaravel 26.Priya 27.Vijaya Ragavan 28.Gilda 29.Anthony Xavier 30.Veerammal 31.Arumuga Nainar 32.Swetha 33.Anthony Raj 34.Larisa Vasanthy 35.Mariappan ... Respondents/Respondents/Defendants

Prayer : Civil Revision Petition under Article 227 of the Constitution of India, against the fair and decretal order dated 07.08.2014 in I.A.No.206 of 2014 in O.S.No.191 of 2010 on the file of the Additional District Munsif, Thoothukudi. For Petitioner : Mr.G.Prabhu Rajadurai

ORDER

The petitioner filed a suit in O.S.No.191 of 2010 for declaration and injunction before the learned Additional District Munsif, Tuticorin. The suit was filed in 2010. The respondent filed written statement and contested the suit. The suit was posted for trial. The petitioner at that point of that time filed an application in I.A.No206 of 2014, for issuance of a commission to inspect the property and submit a report. The interlocutory application was dismissed by the learned Trial Judge on the ground that his intention was only to prove possession and to collect evidence through Advocate Commissioner. Feeling aggrieved by the said order, the petitioner is before this Court. 2.The learned counsel for the petitioner contended that the petitioner should establish his case and it was only for the said purpose, he sought appointment of an Advocate Commissioner. According to the learned counsel, the respondent made an encroachment and the same is required to be proved by taking the assistance of a Commissioner.

3.The affidavit filed in support of the interlocutory application in I.A.No.206 of 2014 shows that the petitioner wanted the appointment of Advocate Commissioner to note down physical features, to survey the land and to establish his plea before the Trial Court.

4.The suit was filed in 2010. Nothing prevented the petitioner from taking steps to get the appointment of an Advocate Commissioner at the earliest point of time, in case there is a serious dispute with respect to the identity of property. 5.The factual matrix does not contain any material with regard to a dispute to the identity. In a suit for recovery of possession, the plaintiff should establish his case by producing documentary evidence. There is no question of proving his possession by issuing a commission. The learned Trial Judge was therefore perfectly correct in rejecting the application. I do not find any error or illegality in the said order warranting interference by exercising the jurisdiction under Article 227 of the Constitution of India.

6.In the upshot, I dismiss the Civil Revision Petition. No costs. However, I make it clear that this order would not stand in the way of the petitioner producing acceptable materials before the Trial Court to substantiate his case on merits. Consequently, connected M.P.(MD) No.1 of 2015 is closed.

Sd/- Assistant Registrar(A.S.,) /True Copy/ Sub-Assistant Registrar To The Additional District Munsif, Thoothukudi.

+1cc to Mr.G.Prabhu Rajadurai, Advocate, in SR. No.17115. C.R.P.PD.(MD).No.331 of 2015 and M.P.(MD) No.1 of 2015 06.04.2015 ARUL msm 21.04.2015 p3/3c