Madras High Court
Sebastin vs Rajapandi Nadar on 20 December, 2021
C.R.P.(MD) No.1153 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.1153 of 2020
and
C.M.P(MD) No.7359 of 2020
1.Sebastin
2.Jeyasingh
3.Ramakrishnan
4.Chithrapathi Jeyaveeran ... Petitioners
Vs
1.Rajapandi Nadar
2.Palaiah @ Muthaiah Papanasam
3.Vickramasingapuram Second Grade Municipality,
Rep by its Commissioner
4.Ramkumar ... Respondents
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decretal order dated
30.06.2020 passed in I.A.No.1 of 2019 in O.S.No.94 of 2012 on the file
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C.R.P.(MD) No.1153 of 2020
of the Additional District Munsif Court, Ambasamudram and allow the
present civil revision petition.
For Petitioners : Mr.S.S.Thesigan
For R1 : Mr.Pon Karthikeyan
ORDER
Aggrieved by the dismissal of the application seeking re-issue of
commission warrant to the Advocate Commissioner to visit the suit
property along with the qualified Surveyor to measure the property
described in O.S.No.20 of 2017 and O.S.No.217 of 2018 as well as the
suit scheduled property, to note down the physical features and submit
the report and plan, the petitioners, who are defendants 1 to 4 in the suit
in O.S.No.94 of 2012, are before this Court.
2.The impugned application in I.A.No.1 of 2019 was filed by the
petitioners in the suit O.S.No.94 of 2012 which has been filed by the
first respondent herein for a mandatory injunction against the defendants
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C.R.P.(MD) No.1153 of 2020
1 and 2 to demolish the north-south wall put up by the defendants 1 and
2, for a mandatory injunction to demolish the newly constructed house,
wall, windows etc.,. and also for a mandatory injunction directing the
fifth defendant to remove the pipeline that has been put up. Pending the
suit, an Advocate Commissioner was appointed ex parte and had gone
and inspected the property and submitted the report.
3.The main grievance of the petitioners is with reference to the suit
second item of the property. The Advocate Commissioner was
appointed ex parte and he has inspected the property and submitted the
detailed report along with the plan. The petitioners herein has not
submitted any objection to the said application. However, they have
come forward with the impugned petition in I.A.No.1 of 2019 for re-
issue of commission warrant.
4.In the affidavit filed in support of the said petition, the
petitioners would submit that the earlier commission was an ex parte
commission about which they had no information and responsible people
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C.R.P.(MD) No.1153 of 2020
were not present when the inspection was underway. Further, the
commissioner has not measured the properties of the first petitioner/ first
defendant. The petitioners would submit that there is no property as
described in the second item on site. Further the petitioners herein have
also filed two suits in O.S.No.20 of 2017 and O.S.No.217 of 2018 in
respect of the second item of suit property. In O.S.No.20 of 2017, the
petitioners have filed I.A.No.144 of 2017 for appointing an Advocate
Commissioner. This application was dismissed on 16.06.2017, against
which. the petitioners had filed CMA No.3 of 2017, which was also
dismissed.
5.The first respondent/plaintiff had resisted the above application
inter alia contending that the petitioners herein have filed two suits in
respect of the very same property. Therefore, the plaintiff would seek to
have the application dismissed.
6.The learned Additional District Munsif, Ambasamudram, after
hearing the parties was pleased to dismiss the above application for
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C.R.P.(MD) No.1153 of 2020
appointing an Advocate Commissioner and it is challenging this order
that the defendants 1 to 4 are before this Court
7.Heard the learned counsel on either side and perused the records.
8.The main objection raised by the learned counsel for the revision
petitioners was that the commissioner's report which has been filed in the
suit was styled as an interim report and therefore, the petitioners were
genuinely under the impression that a final report would be filed and
therefore, they had not file their objection to the said petition. This
application has been moved when the defendants side evidence has
started and when they realised that the interim report is itself the final
report.
9.A perusal of the records would show that the Commissioner
appointed earlier had filed a very detailed report along with the plan, in
which, the Commissioner has set out the physical features on site. The
revision petitioners herein have not filed an objection to the said report
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C.R.P.(MD) No.1153 of 2020
though they would contend that it is an ex parte commission and the
Commissioner has only filed an interim report. Therefore, the
petitioners have accepted the report originally filed. Further, it is brought
to the notice of this Court that after filing of the report, the revision
petitioners have filed two suits in O.S.No. 20 of 2017 and O.S.No.217 of
2018, both in respect of the very same path way. I.A.No.144 of 2017 has
been filed in the suit in O.S.No.20 of 2017 for appointment of an
Advocate Commissioner, which was rejected and the appeal filed against
the same, has also been rejected. In the above circumstances, the present
application is nothing, but an abuse of process of the Court. It is well
open to the petitioners to cross examine the Advocate Commissioner and
there is no necessity for re-issue of the commission warrant. The
petitioners have not been able to point out as to how they are aggrieved
by the appointment of Advocate Commissioner.
10.The learned counsel for the petitioner has submitted a judgment
reported in 1999 (1) MLJ 60 in the case of Kathiresan and another Vs
Shanmugha Sundaram, where the learned Judge has held that when the
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C.R.P.(MD) No.1153 of 2020
appointment of the Commissioner was ex parte and the Commissioner
does not give prior notice to all parties before undertaking the inspection
work, the whole procedure is vitiated and therefore, there should be a
reissue.
11.I would respectfully submit that I am not in agreement with the
observation of the learned Judge, since an ex parte commission is mostly
resorted to when the physical features and other details have to be
urgently noted without alerting the other side. A prior notice would alert
the defendant into altering or putting aside any work that has been
undertaken and in respect of which, mandatory injunction is sought for.
12.In the instant case, though the Advocate Commissioner's report
is styled as a interim report, however, the report has covered the entire
details. Therefore, the observation in the above judgement cannot be
used as an yardstick for all ex parte Commissions. Therefore, I do not
find any reason to interfere with the order of the lower Court.
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C.R.P.(MD) No.1153 of 2020
13.In the result, this Civil Revision Petition is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
20.12.2021
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.
To:-
The Additional District Munsif Court,
Ambasamudram
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C.R.P.(MD) No.1153 of 2020
P.T.ASHA, J.
cp
C.R.P(MD)No.1153 of 2020
and
C.M.P(MD) No.7359 of 2020
20.12.2021
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