appointment of an Advocate Commissioner in a suit for bare injunction was rightly dismissed by the trial Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03.12.2014

CORAM

THE HONOURABLE MR.JUSTICE M.DURAISWAMY

C.R.P(MD)No.1620 of 2011
and
M.P(MD)No.1 of 2011

1.Shahirabi
2.Mohideen Bee
3.Hosnubee
4.Jahidin Bee
5.Gurubara Bee
6.Syed Kashim
7.Sulthan
8.Syed Musthafa
.. Petitioners/Petitioners/Plaintiffs

-vs-

1.N.Hussain Khan
2.Iyybkhan
3.Jahir Hussain
4.Sheick Safiyullah
.. Respondents/Respondents/Defendants

PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India against the order in I.A.No.134 of 2010 in O.S.No.50 of
2010, dated 02.06.2011 on the file of the Sub Court, Kulithalai.
!For Petitioners : Mr.K.R.Laxman
^For RR 1 to 3 : Mr.T.M.Hariharan
For R ? 4 : Mr.K.Govindarajan

:ORDER
Aggrieved over the fair and final order passed in I.A.No.134 of 2010 in
O.S.No.50 of 2010 on the file of the Sub Court, Kulithalai, the plaintiffs
have filed the above Civil Revision Petition.

2. Heard the learned counsel appearing for the petitioners and the
learned counsels appearing for the respondents.

3. The plaintiffs filed the suit in O.S.No.50 of 2010 for permanent
injunction. In the said suit, the plaintiffs filed an application in
I.A.No.134 of 2010 seeking for appointment of an Advocate Commissioner to
note down the physical features with the Assistance of the Taluk Surveyor.
The said application was opposed by the defendants stating that the
appointment of the Advocate Commissioner is not required in a suit for bare
injunction.

4. The trial Court, took into consideration the case of both parties,
dismissed the application. In a suit for permanent injunction, the only issue
that has to be decided with regard to the possession of properties and
therefore, the application seeking for appointment of an Advocate
Commissioner does not arise.

5. It is settled position that in a suit for permanent injunction, as
rightly found by the trial Court, the issue that has to be decided with
regard to the possession of the properties.

6. The learned counsel appearing for the petitioners submitted that the
defendants have filed their written statement disputing the condition of the
building stating that it was not in a dilapidated condition, therefore, the
averments stated in the plaint are false. However, the plaintiffs have prayed
for permanent injunction restraining the defendants from interfering with
their possession.

7. Whether the building is in a dilapidated condition or not can be
proved by the plaintiffs by producing oral and documentary evidences?

8. It is also settled position that a party cannot collect evidence
through Advocate Commissioner.

9. In these circumstances, the present application filed by the
plaintiffs seeking for appointment of an Advocate Commissioner in a suit for
bare injunction was rightly dismissed by the trial Court. I do not find any
reason to interfere with the order passed by the trial Court.
10. Accordingly, the Civil Revision Petition is devoid of merits and
the same is dismissed. However, there shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.

03.12.2014
Index :Yes/No
Internet :Yes/No
ps
M.DURAISWAMY,J.
ps

To

The Sub Court,
Kulithalai.

C.R.P(MD)No.1620 of 2011

03.12.2014

Key word
#advocatecommissioner
#injunction