CRP(MD)/1936/2023 of GANESAN (DIED) 1. AYYATHURAI Vs S.MARISAMY on 16 September 2026

ORDER

The Civil Revision Petition is filed against the order dated 02.02.2022 passed in IA.No.660 of 2018 in IA.No.755 of 2017 in OS.No.128 of 2013 on the file of the Additional Sub Court, Srivilliputhur.

2. The petitioners are the defendants. The respondent is the plaintiff. The respondent filed a suit in OS.No.128 of 2013 for the relief of declaration and injunction. While the suit is pending, the respondent/plaintiff filed an application in IA No.239 of 2013 with a prayer to appoint a commissioner to inspect the property and file his report with plan and the same was allowed.

3. The respondent/plaintiff and the petitioners/ defendants also filed their respective objections. In the meantime, the respondent/plaintiff filed an application in IA.No.755 of 2017 with a prayer to scrap the report of the Commissioner and sought to appoint a new commissioner with a direction to measure the property and to file a fresh report.

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C.R.P(MD)No.1936 of 2023

4. During the pendency of the above petition, again the respondent filed a petition in IA.No.660 of 2018 with a prayer to examine the Commissioner on his side and the same was allowed by the trial Court by stating that the Commissioner could be examined on the side of the Court, which is not proper.

5. The learned counsel for the petitioners submitted that once the respondent filed a petition to scrap the report and again the respondent filed a petition to examine the commissioner as a witness on his side, which is only to gather evidence and not for any other purpose and therefore, prayed to dismiss the petition.

6. The learned counsel for the respondent/plaintiff stated that it is true that the respondent had already filed a petition to scrap the commissioner report, and in order to prove that the commissioner had filed a defective report, the respondent needs to examine him and therefore, he filed the present petition and he also relied upon a judgment in K.Suresh Nepoleon Vs. D.Mohan reported in 2017 (6) CTC 19,

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C.R.P(MD)No.1936 of 2023 wherein, in paragraph No.8 it has been held as follows : “8. It is further stated by the respondents / plaintiffs that the report and plan of the Commissioner are found to be inconsistent with each other and the Commissioner had not clearly demarcated the first and second schedules of the suit property in a clear manner and incorrectly in the plan pointed out the second schedule of the property as BGEF and therefore, the report and plan of the Commissioner should not be accepted. However, it is stated by the petitioner / defendant that the Commissioner has submitted his report and plan based upon his inspection and physical features of the suit property during the time of his inspection and therefore, if at all the respondents / plaintiffs are aggrieved over the report and plan of the Commissioner, according to him, as provided under law, the respondents / plaintiffs are necessitated to examine the Commissioner with the permission of the Court and cull- out from him as to the mode of inspection done by him pursuant to the warrant issued and if by the examination of the Commissioner the respondents / plaintiffs are able to bring out any defect in the report and plan submitted by him, only in such circumstances, the Court would be empowered to either scrap the report of the Commissioner or appoint the same Commissioner or another Commissioner for completing the task left out and the

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C.R.P(MD)No.1936 of 2023 respondents / plaintiffs without resorting to the above mode, cannot by merely filing objection seek for the scrapping of the report of the Commissioner and for the appointment of the another Commissioner to inspect the suit property for such and such purpose. In this connection, the learned counsel for the petitioner / defendant placed strong reliance upon the decisions reported in 1996 TLNJ 104 [Vemba Gounder vs. Pooncholai Gounder] and AIR 2017 Manipur 10 [Kangjam Jayanta Singh vs. Lisham Anilkumar Singh and others]. The learned counsel for the respondents, in support of his contentions, placed reliance upon the decisions reported in 2006 (2) CTC 54 [R.Sivasubramanian vs. S.Balamurugan] and 2009 (2) CTC 205 [Anna Sudha Devi vs. P.George Samuel]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.”

7. The trial Court after hearing both sides found that since the respondent/plaintiff could not examine the commissioner on his side, the commissioner could be examined as witness on Court side and even if the commissioner is examined, it could be helpful to establish the objection raised by the respondent/plaintiff.

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C.R.P(MD)No.1936 of 2023

8. The trial Court is of the view that unless the Commissioner is examined, the respondent cannot cull out the truth and bring out the defects made in its report and therefore, allowed the petition. This Court also accept the findings of the trial Court and also based on the judgment relied upon by the respondent, in order to cull out the defects in the Commissioner’s report and to establish that any defects found in the Commissioner’s report, it is essential for the respondent to examine the Commissioner as a court witness and that there is no prejudice which would be caused to the petitioners/defendants, if the Commissioner is examined. The trial Court rightly held that the Commissioner could be examined as a Court witness and this Court finds that there is no illegality in the order passed by the trial Court and therefore, the civil revision petition is liable to be dismissed.

9. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.

16.09.2026 Index : Yes / No RM

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C.R.P(MD)No.1936 of 2023 Copy to

1. The Additional Sub Court, Srivilliputhur.

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C.R.P(MD)No.1936 of 2023 R. POORNIMA,

J.

RM C.R.P(MD)No.1936 of 2023 16.09.2026

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