Madras High Court
A.Pramila Devi vs Kausalya Sundaram on 9 August, 2021
C.R.P.(NPD)Nos.624 and 627 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)Nos.624 and 627 of 2017
and C.M.P.No.3193 of 2017
A.Pramila Devi .. Petitioner in
both CRPs.
Vs.
1.Kausalya Sundaram
2.The Commissioner
Erode Municipal Corporation
Erode. .. Respondents in
both CRPs.
COMMON PRAYER: Civil Revision Petitions filed under Article 227 of
the Constitution of India, against the fair and decretal order dated
22.12.2016 made in E.A.No.107 of 2016 in E.A.No.43 of 2016 in
E.P.No.63 of 2010 in O.S.No.371 of 2005 and E.A.No.108 of 2016 in
E.A.No.106 of 2016 in E.A.No.43 of 2016 in E.P.No.63 of 2010 in
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C.R.P.(NPD)Nos.624 and 627 of 2017
O.S.No.371 of 2005 on the file of the Principal District Munsif Court,
Erode.
In both CRPs.
For Petitioner : Mr.T.Murugamanickam, Senior Counsel
for M/s.Zeenath Begum
For R1 : Mr.M.N.Kathir
for Mr.G.Pavendhan
For R2 : No appearance
COMMON ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
The Civil Revision Petitions are filed against the fair and decretal
order dated 22.12.2016 made in E.A.No.107 of 2016 in E.A.No.43 of
2016 in E.P.No.63 of 2010 in O.S.No.371 of 2005 and E.A.No.108 of
2016 in E.A.No.106 of 2016 in E.A.No.43 of 2016 in E.P.No.63 of 2010
in O.S.No.371 of 2005 on the file of the Principal District Munsif Court,
Erode.
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C.R.P.(NPD)Nos.624 and 627 of 2017
2.The issues involved in both the Civil Revision Petitions are one
and the same and hence, they are disposed of by this common order.
3(i).The petitioner is the 5th respondent, 1st respondent is the
petitioner and 2nd respondent is the 2nd respondent in E.P.No.63 of 2010.
The 1st respondent, who is the decree holder, filed O.S.No.371 of 2005
against one S.Ravindran/1st defendant, the 2nd respondent herein and two
others for mandatory injunction. The Principal District Munsif Court,
Erode, decreed the suit by judgment and decree dated 23.10.2009 holding
that the building constructed by Ravindran/1st defendant is illegal and
constructed in violation of building permit dated 19.10.2004 and directed
the 2nd respondent to take action after the disposal of the appeal filed by
the said Ravindran to the 4th defendant in the suit. Pending suit, the said
Ravindran sold the suit property to the petitioner vide sale deed dated
24.08.2009.
3(ii).The 1st respondent filed E.P.No.63 of 2010 against all the
defendants in the suit as respondents 1 to 4. The petitioner was
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C.R.P.(NPD)Nos.624 and 627 of 2017
impleaded as per the order dated 18.06.2012 in E.A.No.21 of 2012 as 5 th
respondent in E.P.No.63 of 2010. The 1st respondent filed the said E.P. for
a direction to the 2nd respondent herein to take action against the said
Ravindran/1st defendant in the suit, for removing unauthorsised
construction put up by him. The learned Judge by order dated 26.08.2013
partly allowed E.P.No.63 of 2010 holding that the said Ravindran, the 1 st
defendant in the suit and the petitioner have not properly complied with
the decree granted by the Court and directed the 2nd respondent to take
action against the 1st defendant and the petitioner with respect to the
unauthorised construction put up by the 1st defendant, in accordance with
law, within a period of three months from the date of the said order.
3(iii).The 1st respondent herein filed E.A.No.43 of 2016 under
Order XXI Rule 32(2) and 43 of C.P.C. against the 2 nd respondent herein
to attach the property of the Municipality or arrest and detain the 2 nd
respondent in civil prison alleging that the 2nd respondent did not take any
action as directed by the learned Judge in E.P.No.63 of 2010. The 2nd
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C.R.P.(NPD)Nos.624 and 627 of 2017
respondent filed counter statement and submitted that the 2nd respondent
issued notices to the said Ravindran/1st defendant as well as to the
petitioner for demolishing unauthorised construction, for which, they
informed the 2nd respondent that they themselves demolished the
unauthorised construction put up by the 1st defendant. The 2nd respondent
further stated that subsequently, they demolished the unauthorised
construction.
3(iv).Pending E.A.No.43 of 2016, the 1st respondent filed
E.A.No.106 of 2016 in E.A.No.43 of 2016 against the 2nd respondent for
appointment of Advocate Commissioner to inspect the property with the
help of Civil Engineer and to file a report along with plan.
3(v).The petitioner filed E.A.No.107 of 2016 to implead her in
E.A.No.43 of 2016 and filed E.A.No.108 of 2016 for impleading her in
E.A.No.106 of 2016 in E.A.No.43 of 2016 in E.P.No.63 of 2010.
According to the petitioner, she being the owner of the property, which is
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C.R.P.(NPD)Nos.624 and 627 of 2017
sought to be inspected, her presence is necessary at the time of inspection
by the Advocate Commissioner. The 1st respondent filed counter affidavits
and opposed both the petitions. The learned Judge, by common impugned
order dated 22.12.2016 dismissed both the petitions holding that no relief
was sought against the petitioner in E.A.No.43 of 2016 and the 2 nd
respondent herein was directed to take action and therefore, the petitioner
is not a necessary party in the said petitions.
4.Against the said common fair and decretal order dated
22.12.2016 made in E.A.Nos.107 and 108 of 2016, the petitioner has
come out with the present two Civil Revision Petitions.
5.The learned Senior Counsel appearing for the petitioner
contended that the petitioner purchased the suit property two months
prior to the date of decree by the deed of sale dated 24.08.2009, pending
suit, from the 1st defendant, who did not inform the pendency of the suit
to the petitioner. The suit was decreed by the judgment and decree dated
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C.R.P.(NPD)Nos.624 and 627 of 2017
23.10.2009. The learned Principal District Munsif, Erode, by order dated
18.06.2012 made in E.A.No.21 of 2012 impleaded the petitioner as 5 th
respondent in E.P.No.63 of 2010 as she is the present owner of the suit
property. If the Court is deciding E.A.No.43 of 2016 without aid of any
other materials, then it is only between the Court and the 2nd respondent.
But when the 1st respondent is seeking appointment of Advocate
Commissioner to inspect the property of the petitioner, then the petitioner
is necessary party and otherwise, inspection will be done behind her
back, which is in violation of principles of natural justice. If any report is
filed in E.A.No.106 of 2016, it is open to the petitioner either to accept
such report or file her objection and prayed for allowing both the Civil
Revision Petitions.
6.The learned counsel appearing for the 1st respondent contended
that the 1st respondent is seeking relief in E.A.No.43 of 2016 only against
the 2nd respondent. E.A.No.106 of 2016 is filed only for appointment of
Advocate Commissioner to find out whether the 2nd respondent has
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C.R.P.(NPD)Nos.624 and 627 of 2017
complied with the order of the Court dated 26.08.2013 passed in
E.P.No.63 of 2010. As no relief is sought for against the petitioner, she is
not a necessary party in both E.A.Nos.43 and 106 of 2016. The learned
Judge rightly dismissed both the petitions by giving cogent and valid
reasons and prayed for dismissal of both the Civil Revision Petitions.
7.Though notice has been served on the 2nd respondent and his
name is printed in the cause list, there is no representation for him either
in person or through counsel.
8.Heard the learned Senior Counsel appearing for the petitioner as
well as the learned counsel appearing for the 1 st respondent and perused
the entire materials on record.
9.From the materials on record and arguments of the learned Senior
Counsel for the petitioner as well as the learned counsel for the 1 st
respondent, it is seen that E.A.No.43 of 2016 is filed by the 1 st respondent
against the 2nd respondent for attachment of property of Municipality or
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C.R.P.(NPD)Nos.624 and 627 of 2017
to arrest and detain the Commissioner in civil prison for non-compliance
of the order dated 26.08.2013 passed in E.P.No.63 of 2010. It is for the
2nd respondent to substantiate his case that he has taken action against
Ravindran/1st defendant as well as the petitioner and unauthorised
construction had been removed by Ravindran/1st defendant and the
petitioner. In view of the relief sought for in E.A.No.43 of 2016, the
petitioner is not a necessary party in the said E.A. On the other hand, in
E.A.No.106 of 2016, the 1st respondent is seeking appointment of
Advocate Commissioner to inspect the property belonging to the
petitioner with the help of Civil Engineer and to file a report along with
plan. When the 1st respondent is seeking relief to inspect the property of
the petitioner, the same cannot be done behind the back of the petitioner.
She must be put on notice the date of inspection and she is entitled to be
present during the inspection of the Advocate Commissioner, if
E.A.No.106 of 2016 is allowed by the learned Judge. The learned Judge
failed to consider the fact that in E.A.No.106 of 2016, the 1st respondent
is seeking inspection of the property of the petitioner and erroneously
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C.R.P.(NPD)Nos.624 and 627 of 2017
held that the petitioner is not a necessary party in E.A.No.106 of 2016.
The learned Judge has not properly exercised his power conferred on him
and erroneously dismissed E.A.No.108 of 2016.
10.For the above reason, the common order dated 22.12.2016
passed in E.A.No.107 of 2016 is confirmed and E.A.No.108 of 2016 is
liable to be set aside and is hereby set aside. E.A.No.108 of 2016 is
allowed. The learned Judge is directed to implead the petitioner as the 2 nd
respondent in E.A.No.106 of 2016 and proceed with the said E.A. as per
law.
11.In the result, C.R.P.(NPD)No.624 of 2017 stands dismissed and
C.R.P.(NPD)No.627 of 2017 stands allowed. No costs. Consequently,
connected Miscellaneous Petition is closed.
09.08.2021
Index :Yes/No
Internet:Yes/No
kj
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C.R.P.(NPD)Nos.624 and 627 of 2017
V.M.VELUMANI, J.
kj
To
1.The Commissioner
Erode Municipal Corporation
Erode.
2.The Principal District Munsif
Erode.
C.R.P.(NPD)Nos.624 and 627 of 2017
and C.M.P.No.3193 of 2017
09.08.2021
http://www.judis.nic.in
