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Judgment
G. Rajasuria, J.—Animadverting upon the order dated 30.07.2008 passed by the learned XV Assistant Judge, City Civil Court, Chennai in
I.A. No. 2454 of 2008 in I.A. No. 14269 of 2005 in O.S. No. 4799 of 2005, this civil revision petition is focussed.
A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run
thus:
The revision petitioner/plaintiff filed the suit O.S. No. 4799 of 2005 for an injunction with the following prayer:
for a permanent injunction restraining the defendant herein, his men, agents, servants, employees or anybody acting under or in trust for him, from
disturbing the plaintiff''s peaceful possession of the tea stall being run by the plaintiff in a portion of premises No. 2, Alaiyamman Koil backside, Sir
Thyagaraya Road, Chennai 600 018 more particularly described in the Schedule ""B"" here under except through due process of law.
It appears, the defendant entered appearance and filed the written statement. While so, I.A. No. 14269 of 2005 was filed by the plaintiff seeking
interim injunction, which was granted by the lower Court. Subsequently, I.A. No. 2454 of 2008 was filed by the plaintiff under Order XXXIX,
Rules 1 and 2 of the CPC for appointment of an Advocate Commissioner to inspect the suit property. After hearing both the sides, the said
application was dismissed. Being disconcerted by and dissatisfied with the order of the lower Court, this revision has been focussed on various
grounds, inter alia thus:
The lower Court erroneously dismissed the I.A for appointment of an Advocate Commissioner without considering the averments in the affidavit
accompanying there to; the area in which the suit property is situated would speak by itself that the case of the petitioner is well founded and that
the entire project of the Slum Clearance Board in that area was only at the stage of infancy. Accordingly, he prayed for setting aside the impugned
order of the lower Court.
Despite printing the learned Counsel on either side, no one represented.
Pored and perused the order of the lower court including the grounds of revision. Indubitably and indisputably, unassailably and obviously the
suit is for obtaining permanent injunction so as to safe guard the possession of the plaintiff as against the defendant, till the plaintiff is evicted in
accordance with law. In a case of this nature, I am at a loss to understand, how there could be any scope for appointment of an Advocate
Commissioner at all. The lower Court in its order appropriately and appositely considered the factual circumstances and dismissed the I.A. In the
affidavit accompanying the petition in I.A. No. 2454 of 2008, the defendant dilated on various points relating to implementation of the project by
the Slum Clearance Board, which are not at all germane for deciding that I.A. It is common or garden principle that the petitioner by getting the
Commissioner appointed should not be allowed to fish out evidence or gather evidence in support of his case. Whatever facts the plaintiff wants to
place before the Court the same should be placed by way of adducing evidence either oral or documentary during trial and it cannot be by way of
getting the Commissioner appointed. The suit property here is only a tea stall in the B Scheduled suit property, which is described here under:
Portion of premises No. 2, Alaiyamman (back side) of an extent of 225 sq.ft comprised in R.S. No. 1426/2, wherein a part of the petitioner''s tea
shop is being run.
The prayer in I.A. No. 2454 of 2008 is as vague as vagueness could be and it is reproduced here under for ready reference:
The Court may be pleased to appoint an Advocate Commissioner to inspect the premises No. 2, Alaiamman Koil Street back side, (Sir
Theyagaraya Road, Chennai 600 018), which has been described in Schedule ""A"" to the plaint and wherein the tea shop run by me is situate) the
same having been more particularly described in the Schedule to the petition.
No litigant is given carte-blanche to pray the court to issue commission simply to inspect the suit property. Absolutely, there is nothing to be
inspected in the tea stall in the ""B"" Scheduled Property and it is glaringly and pellucidly clear from the records in addition to it having as clear as
day.
Hence, I could see no infirmity in the order passed by the lower court in I.A. No. 2454 of 2008 and accordingly, this Civil Revision Petition is
dismissed. No costs. Consequently, the connected miscellaneous petition is closed.