Arun Kumaran v. Kannan

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.06.2024

CORAM

THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR and C.M.P(MD)No.7856 of 2024 1.Arun Kumaran 2.Siva Shankhar ... Petitioners/Petitioners/ Plaintiff Vs.

1.Kannan 2.Arun Kumar 3.Viswajith (Minor) Represented by his guardian/father 1st respondent 4.Mala 5.Sumathi 6.Radhalakshmi ... Respondents/Respondents/ Defendants PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, to call for records relating to the fair and decreetal order in I.A.No.1 of 2023 in O.S.No.25 of 2023 passed by the District 1/5

Munsif Court, Alankulam, dated 13.09.2023 and set aside the same. For Petitioner : Mr.A.Balakrishnan

ORDER

The plaintiff in O.S.No.25 of 2023 has filed the revision petition challenging the order passed by the trial Court, wherein it has rejected an application for appointment of Advocate Commissioner.

2. The revision petitioner herein as plaintiff had filed the above said suit for the relief of declaration of title, permanent injunction and recovery of possession. The said suit was dismissed by the trial Court on 28.07.2017. Challenging the same, the plaintiff had filed A.S.No.42 of 2017 before the Sub Court, Ambasamudram. Pending appeal, the plaintiff had filed I.A.No.3 of 2022 for reception of certain documents as additional evidence. The first appellate Court allowed the appeal on 08.09.2022 and remitted the matter back to the trial Court. The operative portion of the order of the first appellate Court reveals that the order of remand has been passed for the specific purpose of marking the additional documents before the trial Court and to let in evidence and contra evidence by either parties touching upon the additional evidence. 2/5

3. After remand, the plaintiff had filed the present application in I.A.No.1 of 2023 for appointment of an Advocate Commissioner to note down the physical features of the property with the help of the Surveyor. The said application has been dismissed by the trial Court. Challenging the same, the present revision petition has been filed.

4. According to the learned counsel appearing for the revision petitioner, the prayer in the suit is for a recovery of possession of a particular schedule of property. Unless an Advocate Commissioner is appointed, he would to put to great prejudice.

5. I have carefully perused the records and heard the submissions.

6. The first appellate Court had remitted the matter back to the trial Court with a specific finding that the scope of remand is restricted for the purposes of marking the additional documents and to let in oral evidence on either side touching upon those additional documents. Therefore, the trial Court does not have any liberty to go beyond the order of remand. In such circumstances, the application filed for the appointment of 3/5

Advocate Commissioner is highly belated one and it is been filed only for the purpose of dragging on the suit. The trial Court has rightly dismissed the application. There are no merits in the revision petition.

7. Hence, this Civil Revision Petition stands dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed. 26.06.2024 NCC : Yes / No Index : Yes / No Internet : Yes / No gbg To 1.The Principal District Munsif Court, Alankulam.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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R.

VIJAYAKUMAR ,J.

gbg Order made in 26.06.2024 5/5