Madras High Court
Subramaniam @ Chinnadurai vs Dharmaraj on 29 April, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 29.4.2021.
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P.(PD) No.981 of 2021
and
C.M.P.No.7850 of 2021
Subramaniam @ Chinnadurai Petitioner
vs.
Dharmaraj Respondent
Civil Revision Petition filed under Article 227 of the Constitution
of India against the Fair and Decreetal order dated 3.2.2021 passed in
I.A.No.4 of 2019 in I.A.No.1887 of 2015 in O.S.No.771 of 2015 on the
file of the II Additional Subordinate Judge, Erode.
For Petitioner : Mr.V.P.Sengottuvel
For Respondents : Mr.S.Kaithamalai Kumaran
ORDER
The plaintiff in O.S.No.771 of 2015, now pending on the file of
the Sub Court, Erode is the revision petitioner herein.
2. The said suit had been filed by the plaintiff against the
neighbour seeking a declaration that the plaintiff is the absolute owner
of the property which had been described in 'A' schedule property
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and for consequential permanent injunction restraining the defendant
from interfering with possession and also for mandatory injunction to
remove the windows, openings and sunshade which the defendant is
said to have fixed on the southern side of 'AB' Wall facing the plaintiff’s
vacant space and preferably by appointment of an Advocate
Commissioner and also for the costs of the suit.
3. Alongwith the said suit, the plaintiff, in order to determine the
physical features of the land, had filed I.A.No.1887 of 2015 taking
advantage of Order 26 Rule 9 of the Code of Civil Procedure seeking
appointment of an Advocate Commissioner to go over to the particular
place to note down the physical features and file a report.
4. The court had also obliged the request and an Advocate
Commissioner was appointed. Report was also filed by the Advocate
Commissioner.
5. The petitioner herein was not satisfied with the said report,
but quite sensibly filed objections and the objections have been
recorded. Thereafter, written statement was filed and issues were
framed. The parties were invited to adduce evidence. The plaintiff
was examined as PW1 and he also marked Exs.A1 to A12. The matter
was, then, posted for cross examination of PW1. At that stage, the
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plaintiff filed Application in I.A.No.121 of 2018 to decide as preliminary
issue whether the court had pecuniary jurisdiction to examine the
issues.
6. I would not like to go deep in the said issue as I wonder how
the plaintiff himself had filed an Application questioning the jurisdiction
of the very court where he had instituted the suit. That Application
came to be dismissed. Preliminary issue was also framed. This is
evident from the order which is now under revision.
7. Thereafter, the petitioner filed I.A.No.4 of 2019 again seeking
for appointment of Advocate Commissioner or to reissue the warrant
to the same Advocate Commissioner. The respondent
herein/defendant in the suit did not file counter. Order was passed on
2.3.2021 in the said Application. That order is the subject matter of
the revision petition.
8. The learned counsel for the petitioner took the court through
the order passed by the learned Judge and invited the court examine
the reasons assigned. The learned counsel stated that the reasons
cannot withstand the scrutiny of the court. The learned Judge had
made observations about the schedule of property and wondered
whether it was the same property or a different property and had also
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stated that the provision of law was not correct. It was also observed
that the relief seeking re-issue of Commissioner Warrant at a belated
stage is not proper.
9. Be that as it may, I am not going into the reasons as the
Application itself has been dismissed. The matter may rest at that.
10. The parties are advised to participate in the trial
proceedings. PW1 may subject himself for cross examination and also
examine any other witness if he so intends. Thereafter, the defendant
may also examine himself and other witnesses on his side and they
may also subject themselves for cross examination.
11. Either party can always reserve their right to summon the
Advocate Commissioner and put his report to test.
12. After the evidence is recorded and at that point of time, if
the learned Judge once again feels that investigation at local level is
required for the purpose of elucidating any matter in dispute, certainly,
Order 26 Rule 9 C.P.C. gives a small window for appointment of
Advocate Commissioner, to issue warrant to Advocate Commissioner.
13. The learned Judge, after recording evidence, if such a
requirement is felt by the leaned Judge, since he has to be confident
that while analysing the evidence, a just Judgment should be
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delivered, can appoint an Advocate Commissioner or re-issue the
warrant to the same Advocate Commissioner.
14. Let the plaintiff and the defendant not create any further
confusion in the entire issue and file Applications during the course of
trial. Filing Applications may ultimately lead to the disadvantage to
either one of the parties. Therefore, filing of Interlocutory Application
during the course of evidence cannot be encouraged and as a matter
of fact should not be encouraged. As observed by me, let the learned
Judge keep his/her mind open, examine the evidence adduced by the
parties and decide whether the evidence on record is sufficient and on
examining such evidence, he or she may proceed to deliver the
Judgment.
15. If the learned Judge, at that stage, feels that some more
local investigation is required, then, I am confident that the learned
Judge would resort to Order 26 Rule 9 C.P.C.
16. Let the parties give way to the learned Judge to take a
decision. Let the trial proceed. I hope and trust that the plaintiff and
defendant would not take any unnecessary adjournments and rather
be eager to co-operate with the trial.
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17. With the said observation, the revision petition is disposed
of, however, giving a small opening at the conclusion of evidence No
order as to costs. The connected Miscellaneous Petition is closed.
29.4.2021.
Index: Yes.
Internet: Yes.
ssk.
To
II Additional Subordinate Judge,
Erode.
https://www.mhc.tn.gov.in/judis/
C.V.KARTHIKEYAN, J.
Ssk.
C.R.P.(PD) No.981 of 2021
and
C.M.P.No.7850 of 2021
29.4.2021.
https://www.mhc.tn.gov.in/judis/
