Shanmugam vs Mathialagan
2021 Latest Caselaw 11185 Mad

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                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 30.04.2021

                                                        Coram

                                    The Hon'ble Mr. Justice C.V.KARTHIKEYAN

                                             C.R.P. (PD) No.1004 of 2021
                                                         and
                                               C.M.P.No.8089 of 2021


                      Shanmugam                                ..Petitioner/Respondent/Defendant

                                                          Vs

                      Mathialagan
                                                                    ..Respondent/Applicant/Plaintiff

                            Civil Revision Petition filed under Article 227 of the Constitution of
                      India to set aside the fair and decreetal order dated 16.03.2021 passed in
                      I.A.No.27 of 2021 in O.S.No.50 of 2018 passed by the learned
                      Additional Subordinate Judge Dharmapuri, Dharmapuri District.


                                    For Petitioner             ..      Mr.M.R.Jothimanian

                                    For Respondent             ..      Mr.B.Gopalakrishnan




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                                                       ORDER

Heard Mr.R.Jothimanian, learned counsel for the petitioner and

Mr.B.Gopalakrishnan, learned counsel who entered appearance on behalf

of the respondent in his capacity as caveator.

2.This present Civil Revision Petition has been filed by the

defendant in O.S.No.50 of 2018 which is now pending on the file of the

Additional Subordinate Court, Dharmapuri. O.S.No.50 of 2018 had

progressed considerably from the date of its institution.

3.The written statement had been filed and the Court had also

framed the issues and had invited the parties to adduce evidence. The

plaintiff and the defendant then took up the invitation and evidence was

also recorded. Thereafter, the matter was posted for advancing

arguments.

4.At that particular stage, the plaintiff had filed an application

under Order 26 Rule 9 of CPC seeking appointment of an Advocate

Commissioner. That application was filed in I.A.No.27 of 2021. The

Interlocutory Application came up for consideration before the learned http://www.judis.nic.in

Additional Subordinate Judge, Dharmapuri, on 16.03.2021 and the

learned Judge thought it fit to allow the said application.

5.Questioning the rationale behind the said order, the defendant

has preferred the present civil revision petition.

6.The suit in O.S.No.50 of 2018 had been filed seeking the relief

for declaration of title and recovery of possession with respect to the

property which has been described as B-Schedule in the plaint. The

plaintiff claimed that the defendant had encroached the property and had

put up a construction in the suit property. Those assertions by the

plaintiff had been denied by the defendant. Necessary pleadings had been

advanced by both the parties. Issues have also been framed. They also

tendered evidence. Evidence had also been tested during cross-

examination. That evidence will have to be now analyzed by the learned

Additional Subordinate Judge, Dharmapuri who has to go through the

same and pick out the admissible parts and thereafter, will have to give a

finding with respect to each and every issue framed for trial.

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7.Taking recourse to appointment of an Advocate Commissioner

report, after evidence had been let in by the parties would be setting the

clock back and it would not be appropriate on the learned Judge to re-

appreciate the evidence in the light of the report of the Advocate

Commissioner.

8.Let the learned Additional Subordinate Judge, Dharmapuri,

examine the evidence already adduced by the parties. This is the evidence

which comprises the facts they know and had been tested during cross-

examination when they grazed the witness box. That evidence has to be

now analyzed.

9.I am not inclined to uphold the reasons given in the order,

particularly that part where the learned Judge had stated that the report of

the Advocate Commissioner would determine whether there is

encroachment in the suit property. Naturally this would require a finding

of possession on the suit property. The Advocate Commissioner is not an

authorized person to give such a finding and the learned Judge should not

expect such a finding from the Advocate Commissioner. The burden is

heavily on the plaintiff to establish title but also the necessity for recovery

of possession.

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10.The order is therefore interfered with and the said order in

I.A.No.27 of 2017 dated 16.03.2021 is set aside.

11.This Civil Revision Petition is allowed with a direction to the

learned Additional Subordinate Judge, Dharmapuri to proceed further

and render a Judgment in the suit at the earliest. No order as to costs.

Consequently, the connected Civil Miscellaneous Petition is closed.

30.04.2021 Internet:Yes/No Index:Yes/No smv

To The Additional Subordinate Court Dharmapuri.

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C.V.KARTHIKEYAN,J.

smv

C.R.P. (PD) No.1004 of 2021

30.04.2021

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