No bar for Appointment of Advocate commissioner in suit for bare injunction.
Citation
CDJ 2017 MHC 2564
Amutha vs Anandji Sankara Narayanan
Head Note
Constitution of India - Article 227 – Civil Procedure Code, 1908 - Order 26, Rule 9 – possession and enjoyment of property - right, title and interest - Plaintiff/Petitioner purchased Suit schedule of property and has put up a small hut in Suit schedule of property - Plaintiff is in continuous possession and enjoyment of property without any let or hindrance - Plaintiff further states that her vendors’ father/ deceased had obtained property by way of hereditary - despite sale of property by vendors of Plaintiff, respondent/Defendant alleged that she is the owner of Suit schedule of property and trying to encroach the same due to raise in prices of land - when Plaintiff refused to heed to unreasonable demand of Defendant - Plaintiff states that Defendant had never in possession of said property after sale effected in favor of Plaintiff and even in the Complaint lodged before Inspector of Police - Defendant has no manner of right, title or claim in respect of Suit property - Therefore, petitioner filed Suit for Permanent Injunction restraining Defendants, in any way interfering with Plaintiff ’s peaceful possession and enjoyment of property which was dismissed – hence instant petition
Issue is - whether plaintiff/petitioner is in absolute possession and enjoyment of Suit property
Court held - absolutely there was no prejudice would be caused to Respondent/Defendant by appointing an Advocate Commissioner for the purpose of inspecting property and submit his Report on physical features, measurements, etc. - though Commissioner cannot decide dispute, his Inspection and Report would helpful Court in deciding dispute - Hence, a local investigation is the best way to find out position and party, and coveting evidence to place before Court through local investigation by Commissioner cannot be shut out of their right - Therefore, appointment of Advocate Commissioner is maintainable, even in Suit filed by Petitioner/Plaintiff for Permanent Injunction and accordingly there is necessity for interference and accordingly, court set aside Order passed by District Munsif Court -Petition is allowed - Lower Court, is directed to appoint an Advocate Commissioner and direct him to inspect Suit property, measure the same, note down the physical features, with the help of respective Taluk Surveyors and submit his Final Report along with Rough Sketch, within a period – petition disposed of.
Para 28, 29
Cases Referred:
Pillaiyar v. Ganesan and another, 2000 (1) CTC 279: 1999 MLJ (Supp.)?
Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, 1985 (1) MLJ 380: AIR 1986 Mad. 33,
Saraswathy and another v. Viswanathan, 2002 (2) CTC 199 (C.R.P. No.2352 of 2001 dated 13.3.2002),
Appu v. A. Fatima Zohra and another 1983 (96) LW 369: 1982 TLNJ 482
B. Athilakshmi and another v. Sri Prasanna Vinayagar Temple, Pallavayal Road, Agaram, Jawahar Nagar, Chennai-82 and another, 2008 (6) CTC 287
K. Dayanand and another v. P. Sampath Kumar
Shaik Zareena Kasam v. Patan Sadab Khan and ors. (6 supra), this Court at Paragraph No.10
Comparative Citations:
2016 (3) MWN(Civil) 614, 2016 (5) LW 658,
Issue is - whether plaintiff/petitioner is in absolute possession and enjoyment of Suit property
Court held - absolutely there was no prejudice would be caused to Respondent/Defendant by appointing an Advocate Commissioner for the purpose of inspecting property and submit his Report on physical features, measurements, etc. - though Commissioner cannot decide dispute, his Inspection and Report would helpful Court in deciding dispute - Hence, a local investigation is the best way to find out position and party, and coveting evidence to place before Court through local investigation by Commissioner cannot be shut out of their right - Therefore, appointment of Advocate Commissioner is maintainable, even in Suit filed by Petitioner/Plaintiff for Permanent Injunction and accordingly there is necessity for interference and accordingly, court set aside Order passed by District Munsif Court -Petition is allowed - Lower Court, is directed to appoint an Advocate Commissioner and direct him to inspect Suit property, measure the same, note down the physical features, with the help of respective Taluk Surveyors and submit his Final Report along with Rough Sketch, within a period – petition disposed of.
Para 28, 29
Cases Referred:
Pillaiyar v. Ganesan and another, 2000 (1) CTC 279: 1999 MLJ (Supp.)?
Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, 1985 (1) MLJ 380: AIR 1986 Mad. 33,
Saraswathy and another v. Viswanathan, 2002 (2) CTC 199 (C.R.P. No.2352 of 2001 dated 13.3.2002),
Appu v. A. Fatima Zohra and another 1983 (96) LW 369: 1982 TLNJ 482
B. Athilakshmi and another v. Sri Prasanna Vinayagar Temple, Pallavayal Road, Agaram, Jawahar Nagar, Chennai-82 and another, 2008 (6) CTC 287
K. Dayanand and another v. P. Sampath Kumar
Shaik Zareena Kasam v. Patan Sadab Khan and ors. (6 supra), this Court at Paragraph No.10
Comparative Citations:
2016 (3) MWN(Civil) 614, 2016 (5) LW 658,
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