Madras High Court
Palvannan vs N.Subbiah on 1 December, 2021
C.R.P.(MD) No.1802 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.1802 of 2021
and
C.M.P(MD) No.9692 of 2021
Palvannan ... Petitioner
Vs.
1.N.Subbiah
2.S.Perma ... Respondents
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to call for the records relating to the fair and
decreetal order dated 02.08.2021 made in I.A.No.1 of 2019 in A.S.No.07
of 2018 on the file of the Sub Court, Sankarankovil and set aside the
same.
For Petitioner : Mr.V.Sasi Kumar
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C.R.P.(MD) No.1802 of 2021
ORDER
The petitioner/appellant, whose petition for appointment of an
Advocate Commissioner in the appeal suit was dismissed, is before this
Court, challenging the said order which is passed in I.A.No.1 of 2019 in
A.S.No.7 of 2018.
2.The facts in brief are as follows:-
(i) The petitioner herein had filed O.S.No.194 of 2007 on the file
of the District Munsif cum Judicial Magistrate, Sivagiri, for declaration
that the suit first and second items of properties are the properties of the
plaintiff and for an injunction restraining the defendants from interfering
with the same and for mandatory injunction directing the defendants to
remove the encroachment in the fifth item of the suit properties and to
declare the suit items 3 and 4 as the common pathway of the plaintiff and
defendants and also for a consequential injunction. The suit after contest
was dismissed by judgment and decree dated 30.10.2017. Aggrieved by
the same, the petitioner herein has filed A.S.No.7 of 2018 on the file of
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C.R.P.(MD) No.1802 of 2021
the Sub Court, Sankarankovil. In the appeal, the petitioner has come
forward with an application to appoint an Advocate Commissioner. The
petition has been filed stating that in the trial Court, the defendants had
taken out an application for appointing an Advocate Commissioner to
visit the property and submit the report. The Advocate Commissioner
had visited the suit properties and submitted a report.
(ii) The petitioner would submit that the respondents / defendants
are continuing with the construction in the suit property and in order to
identify the same, it is necessary that an Advocate Commissioner be
appointed. The respondents would object to the said petition saying that
it is nothing but an attempt to drag on the proceedings and that the
Advocate Commissioner who had been appointed by the trial Court, had
submitted a very detailed report along with his plan.
(iii) The learned Subordinate Judge, Sankarankovil, after hearing
the parties had proceeded to dismiss the said petition. The learned Judge
held that the petition has filed only on the ground that the defendants had
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C.R.P.(MD) No.1802 of 2021
made construction in the suit property. If such petitions are entertained,
then for every construction that is put up, the Court would have to
appoint an Advocate Commissioner to note down the physical features
and this would result in prolonging the litigation between the parties.
3.Heard the learned counsel for the petitioner and perused the
records.
4.The petitioner has come forward with the case that there is an
encroachment and the same has to be removed. The earlier
commissioner report had clearly described the physical features of the
suit property in very great details. The petitioner has not made out any
valid reason for seeking an appointment of new commissioner to note
down the physical features. He has also not stated as to how the earlier
commissioner report is lacking in material particulars and he has also not
sought to have the earlier commissioner report scraped. Further the trial
Court in its judgment had stated that the petitioner had not taken any
steps to have the earlier commissioner's report and plan marked as
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C.R.P.(MD) No.1802 of 2021
exhibits and it was the Court which had suo motu marked it. That apart
no objections have been filed by the plaintiff to the earlier
commissioner's report and plan marked as Ex.C1 and C2. Therefore,
without stating how Ex.C1 and C2 was wrong and without scrapping the
same the present petition seeking appointment of an Advocate
Commissioner is not maintainable.
5.In these circumstances, I do not see any reason for interfering
with the order of the court below and accordingly, this Civil Revision
Petition is dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
01.12.2021
Index :Yes/No
Internet :Yes/No
cp
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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C.R.P.(MD) No.1802 of 2021
To:-
The Subordinate Judge,
Sankarankovil.
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C.R.P.(MD) No.1802 of 2021
P.T.ASHA, J.
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C.R.P(MD)No.1802 of 2021
01.12.2021
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