Madras High Court
Sri Shantha Lakshmi Brick Works vs P.G.Ravi on 23 April, 2021
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
CRP(NPD) No.2426 of 2017
in
CMP.No.11432 of 2017
Sri Shantha Lakshmi Brick Works
Represented by its Partner
T.Shantha Kumari
W/o.Thanickachalam
Thondanthulasi Village and Post,
Katpadi Taluk,
Vellore District ...Revision Petitioner / Petitioner/Appellant
Vs.
Govindasamy Reddy (Died)
1.P.G.Ravi S/o. (Late) Govindasamy
2.Neelammal W/o. (Late) Govindasamy
3.G.Ragunathan S/o. (Late) Govindasamy
4.G.Chandran S/o. (Late) Govindasamy
5.G.Harshavardhanam S/o. (Late) Govindasamy
6.G.Thulasi Raman S/o. (Late) Govindasamy
7.G.Soundara Rajan S/o. (Late) Govindasamy
8.Vimala D/o. (Late) Govindasamy
9.Jothi D/o. (Late) Govindasamy
...Respondent / Respondent/Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Civil Procedure
Code to set aside the fair and decreeetal order passed in I.A.No.10 of 2016 in
A.S.No.43 of 2014 on the file of the Principal District Judge at Vellore, dated
16.11.2016.
For Petitioner : M.E.V.Thulasi
For Respondents : Mr.P.Krishnan
https://www.mhc.tn.gov.in/judis/
1/10
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
ORDER
(This case has been heard through video conference)
This petition has been filed to set aside the fair and decreetal
order passed in I.A.No.10 of 2016 in A.S.No.43 of 2014 on the file of the
Principal District Judge, Vellore dated 16.11.2016.
2. The brief facts of the case is that the petitioner/appellant had
filed O.S.No.415 of 1990 before the Subordinate Court, Vellore against the
respondents/defendants seeking to pay a sum of Rs.1,94,400/- towards
damages for loss of income along with interest @ Rs.24% from the date of
filing of the suit. The claim of the plaintiff in the suit was that he had taken
lease of lands in plaint schedule “B” properties in S.No.237/1, S.No.174/1
(both dry lands) and S.No.198/8 (wet land) in Thondanthulasi Village,
Gudiyattam Taluk, North Arcot District from the respondents/defendants and
had put up a Brick kiln Chamber in the name of Sri. Shantha Lakshmi
Brick Works with 24 ovens and Metal Chimney with accessories and
asbestos cement roof and Thatched sheds in leased lands. Since, the
respondents/defendants did not permit him to do the business, he was made
to suffer loss and thereby, he had filed the suit for damages. The suit was
dismissed on 08.04.2013 and against the dismissal of the suit, the petitioner
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
had filed A.S.No.43 of 2014 before the Principal District Court, Vellore.
During the pendency of the appeal, the revision petitioner had filed
I.A.No.10 of 2016 under Order 26 Rule 9 and Section 151 CPC for
appointment of Advocate Commissioner for inspecting the schedule
mentioned property namely the Brick kiln and to note down its physical
features and file report. The I.A.No.10 of 2016 was dismissed by the
appellate Court by order dated 16.11.2016. Against which, the present
Revision Petition has been filed.
3. The learned Counsel for the petitioner/appellant would submit
that the petitioner/plaintiff had taken lands mentioned in suit schedule “B”
Properties from the respondents/defendants on lease and had put up a Brick-
kiln to the value of Rs.2 lakhs. The respondents/defendants did not allow him
to do the business properly and thereby, the petitioner was put to severe loss
and therefore, he had filed O.S.415 of 1990 before the Subordinate Court,
Vellore, to direct the respondents/defendants to pay a sum of Rs.1,94,400/-
along with interest towards damages for the loss of income of the
petitioner/plaintiff, whereas the trial Court without proper appreciation of
facts and law, had dismissed the suit. Thereafter, the petitioner had filed
A.S.No.43 of 2014 before the Principal District Judge, Vellore and during the
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
pendency of the appeal, the petitioner had filed a petition for appointment of
Advocate Commissioner to prove the fact that the petitioner had spent an
amount Rs.2 lakhs and had built a Brick-kiln on his own amounts and that
due to the interference of the respondents/defendants, the petitioner was
unable to do the business properly and he sustained loss. He would submit
that the appointment of the Advocate Commissioner was very much
essential, whereas the Appellate Court without taking into consideration the
fact, had dismissed the application against which, the present revision has
been filed.
4. The learned Counsel for the respondents/defendants would
submit that the respondents had leased out their lands to the petitioner to put
up a Brick-kiln in their property. The lease taken in the year 1983 and the
lease was only for the period of 15 years and as per the lease, the petitioner
has to leave the place as and where it is. Whereas, even after the expiry of the
lease, the petitioner did not leave the place and the lease was also not
extended. He would submit that after the expiry of the lease, the petitioner
also did not pay arrear amounts to the tune of Rs.75,875/- and continued to
harass the respondents/defendants, owners of the property. Therefore, the
respondents/defendants also filed a suit in O.S.No.70 of 1994 before the
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
District Munsif Court, Katpadi, for recovery of the arrear amounts and the
same was decreed on 07.03.2001. Against the Judgment and decree, the
petitioner has not filed any appeal and thereby, the order has also become
final. The decree amount had not been paid by the revision petitioner.
Subsequently, the respondents/defendants also filed another suit in
O.S.No.769 of 2009 before the District Munsif Court, Katpadi, Vellore for
recovery of arrears of lease amount for the subsequent period with interest @
Rs.6% per annum from the date of filing of the suit and it is pending.
Meanwhile, the revision petitioner also filed an appeal against the order
passed in O.S.No.415 of 1990 with delay and it was numbered condoning the
delay of 347 days as A.S.No.43 of 2014. He would submit that at the time of
filing the appeal, the petitioner had not moved any petition for appointment
of Advocate Commissioner whereas, when the Appeal was ripe for hearing,
in order to delay the proceedings in A.S.No.43 of 2014, the petitioner had
filed I.A.No.10 of 2016 for appointment of Advocate Commissioner after a
period of two years. The appellate Court rightly finding that the suit was filed
during the year 1990 and it had been disposed during the year 2013 and that
there had been much delay and that it would not be possible for the Brick-
kiln to be in the same condition after a long period, had dismissed the
petition. The trial Court had taking into consideration that there had been a
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
gap of 26 years from the date of filing of the suit and the petition seeking for
appointment of Advocate Commissioner had found that the physical features
would not exist in the same condition and manner as it was on the date of
filing the suit, had dismissed the application. The trial Court had also
specifically found that the petition was filed only for the purpose of delaying
the appeal. Hence, he would submit that the order passed by the appellate
Judge needs no interference.
5. Heard both sides and perused the materials available on record.
6. The petitioner is the plaintiff in O.S.No.415 of 1990 seeking for
damages. The contention of the petitioner is that he had taken lease of lands
from the respondents/defendants and put up a Brick kiln in the year 1983 and
that he was not allowed to do business properly and thereby, he suffered loss.
The respondents/defendants had filed a written statement stating that the
lease of the lands was taken in the year 1983 and the lease to run the Brick
kiln was only for 15 years and thereafter, the lease had not been extended.
The trial Court finding that the petitioner /plaintiff had continued to be in the
place after expiry of lease period, had dismissed the suit. Against which, the
petitioner had filed A.S.No.43 of 2014. Even in the appeal, only after two
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
year he had filed I.A.No.10 of 2016 seeking for appointment of Advocate
Commissioner to inspect the schedule mentioned property namely the Brick
kiln and to note down its physical features and to file a report. The trial Court
taking note of the fact that the suit is of the year 1990 and the same was
dismissed in the year 2013 and thereafter, the appeal had been filed in the
year 2014 and that the application for appointment for Advocate
Commissioner was filed after a period of two years of the appeal and also
finding that no valid reasons had been stated as to how the report of the
Advocate Commissioner will be of help deciding the issue, had dismissed the
petition. Further, the appellate Court has held that it cannot be expected that
the same physical features would be available after a period of 26 years.
7. Having gone through the reasons stated by the appellate
Court, this Court is satisfied that it cannot be expected that the same physical
features would be available after a period of 26 years and further, as rightly
held by the appellate Court, the petitioner has not stated any valid reasons as
to how the report of the Advocate Commissioner will help in deciding the
issue involved.
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
8. This Court does not find any infirmity in the order passed by
the appellate Court in I.A.No.10 of 2016 in A.S.No.43 of 2014 dated
16.11.2016. In view of the same, the Revision petition stands dismissed. No
Costs. Consequently, connected miscellaneous petition is closed.
9. The appeal is of the year 2014. The Appellate Court is
directed to dispose of the appeal in A.S.No.43 of 2014 within a period of
three months from the date of receipt of copy of the order.
23.04.2021
tta/ksa-2
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
To
The Principal District Judge, Vellore,
https://www.mhc.tn.gov.in/judis/
CRP(NPD) No.2426 of 2017 in
CMP.No.11432 of 2017
A.D.JAGADISH CHANDIRA,J.
Ksa-2
CRP(NPD) No.2426 of 2017
in
CMP.No.11432 of 2017
23.04.2021
https://www.mhc.tn.gov.in/judis/
