Madras High Court
S.Govindaraj vs J.M.Fathima Dilsath Parveen on 21 December, 2021
C.R.P.(NPD)No.1009 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)No.1009 of 2016
and C.M.P.No.5663 of 2016
S.Govindaraj .. Petitioner
Vs.
1.J.M.Fathima Dilsath Parveen
Represented by her power agent
Hajima Begum
2.Muthukumar
3.Yoganathan
4.Sargunam .. Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decretal order dated 18.11.2015
in E.A.No.11 of 2015 in E.A.No.105 of 2014 in E.P.No.5 of 2014 in
R.C.O.P.No.23 of 2004 on the file of the District Munsif Court,
Mannargudi.
1/10
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.1009 of 2016
For Petitioner : Ms.P.Vidhya Shree
for Ms.P.T.Ramadevi
For R1 : No appearance
For R2 and R4 : No appearance
ORDER
Civil Revision Petition is filed against the fair and decretal order
dated 18.11.2015 in E.A.No.11 of 2015 in E.A.No.105 of 2014 in
E.P.No.5 of 2014 in R.C.O.P.No.23 of 2004 on the file of the District
Munsif Court, Mannargudi.
2.Though the 1st respondent has entered appearance through
counsel, there is no representation for her, when the matter is taken up for
hearing.
3.Though notice has been served on the respondents 2 and 4 and
their names are printed in the cause list, there is no representation for
them either in person or through counsel.
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C.R.P.(NPD)No.1009 of 2016
4.Heard the learned counsel appearing for the petitioner and
perused the entire materials on record.
5.The petitioner is third party in R.C.O.P.No.23 of 2004 and
E.P.No.5 of 2014. The 1st respondent/landlord filed said R.C.O.P. against
the respondents 2 to 4/tenants and eviction was ordered on 09.09.2005.
R.C.A.Nos.32 and 34 of 2006 and C.R.P.Nos.2268 and 2269 of 2007
filed by the respondents 2 to 4 against order of eviction were dismissed.
The 1st respondent/landlord filed E.P.No.5 of 2014 for possession of
petition premises as per the order of eviction. At that stage, the petitioner
filed E.A.No.105 of 2014 in E.P.No.5 of 2014 as an obstructer. In the
said E.A., he again filed present E.A.No.11 of 2015 for appointment of
Advocate Commissioner to inspect the petition premises and the shop in
possession and to file report.
6.According to the petitioner, as per oral rental agreement, the
petitioner became tenant under 1st respondent from January 2001 in
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C.R.P.(NPD)No.1009 of 2016
respect of southern portion of the petition premises and doing business in
the name and style of 'Sri Cauvery Traders' and he is paying Rs.1,250/- as
monthly rent to the agent of 1st respondent from time to time. He paid rent
upto August 2014 and on trust, receipts were not received for payment of
rent. The petition premises is divided into two portions by wooden
partition as southern and northern portion. The petitioner is tenant in
respect of southern portion. The respondents 2 to 4 are running medical
shop in the northern portion. The respondents 2 to 4 vacated the petition
premises and went away. The northern portion of the petition premises is
closed for years together. On 11.09.2014, the agent of the 1st respondent
came to petitioner's shop and informed him to vacate the shop within two
days, otherwise he will be vacated through Court Official. Then only the
petitioner came to know about R.C.O.P.No.23 of 2004 and E.P.No.5 of
2014 filed by the 1st respondent. Immediately, the petitioner filed
E.A.No.105 of 2014 in E.P.No.5 of 2014 as an obstructer. The petitioner
has registered the shop with Commercial Tax Department and is paying
tax. Eviction order passed against the respondents 2 to 4 is not binding on
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C.R.P.(NPD)No.1009 of 2016
the petitioner. The petitioner is doing business and he is in possession of
southern portion of petition premises. Only when Advocate Commissioner
is appointed to inspect the petition premises, it will be helpful to prove the
averments in the obstruction petition that petitioner's possession and
property alleged to have been taken possession by 1st respondent are
different. The report of the Advocate Commissioner will reduce the
examination of the witness to prove the case of the petitioner and prayed
for appointment of Advocate Commissioner in the obstruction petition.
7.The 1st respondent filed counter affidavit denying all the
averments stated that in the R.C.O.P., the petition premises is clearly
described as Door No.79 with boundaries. On 12.09.2014, the 1st
respondent took possession of petition premises through Court amina
with the help of Police, all the goods in the petition premises including
flux board were removed, steel rods were put in front of the shop and
shop is locked with number of locks. When the 1st respondent was out of
station, the petitioner kept the flux board to create an impression that he
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C.R.P.(NPD)No.1009 of 2016
is in possession of petition premises and filed present petition for
appointment of Advocate Commissioner. The petitioner has to prove his
possession only by letting in oral and documentary evidence in the
obstruction petition. The petitioner is trying to collect evidence through
Advocate Commissioner, it is an abuse of process of law and prayed for
dismissal of the said petition.
8.Before the learned Judge, the petitioner did not let in any oral
evidence. He filed and marked 12 documents as Exs.P1 to P12. The 1 st
respondent did not let in any oral and documentary evidence.
9.The learned Judge considering the averments in the affidavit,
counter affidavit, the documents marked by the petitioner and judgments
relied on by the counsel for the 1st respondent, dismissed E.A.No.11 of
2015.
10.Against the said order of dismissal dated 18.11.2015 in
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C.R.P.(NPD)No.1009 of 2016
E.A.No.11 of 2015 in E.A.No.105 of 2014 in E.P.No.5 of 2014 in
R.C.O.P.No.23 of 2004, the petitioner has come out with the present Civil
Revision Petition.
11.From the materials on record, it is seen that 1st respondent has
filed E.P.No.5 of 2014 for eviction of respondents 2 to 4 as per order of
eviction passed in R.C.O.P.No.23 of 2004, which was confirmed in the
R.C.A.Nos.32 and 34 of 2006 and C.R.P.Nos.2268 and 2269 of 2007.
In the E.P. filed by the 1st respondent, the petitioner filed E.A.No.105 of
2014 under Order XXI Rule 97 of C.P.C. as an obstructer. In the said
E.A., the petitioner filed present E.A.No.11 of 2015 under Order XXVI
Rule 9 read with Section 151 of C.P.C. for appointment of Advocate
Commissioner to inspect the petition premises and to file a report.
According to the petitioner, the petition premises is divided into two parts
as southern and northern portion. The petitioner is tenant in the southern
portion under 1st respondent from January 2001 and carrying on business
in the name and style of 'Sri Cauvery Traders'. According to the petitioner,
he has registered his business with Commercial Tax Department and is
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C.R.P.(NPD)No.1009 of 2016
paying statutory dues to the Government. When the petitioner is taking
such a specific stand, it is for him to prove the same by letting in oral and
documentary evidence in the petition filed by him as an obstructer to
show that he is tenant under 1st respondent in respect of southern portion
of the suit property. It is for the petitioner to prove by letting in acceptable
evidence that there are two portions and the 1st respondent has obtained
order of eviction only against the respondents 2 to 4, who are the tenants
in the northern portion of the petition premises. It is well settled that an
Advocate Commissioner cannot be appointed to verify as to who is in
possession of the particular property. By filing application for
appointment of Advocate Commissioner, the petitioner is trying to collect
materials to prove his possession. The same cannot be allowed as per well
settled judicial pronouncement. The learned Judge has considered all the
materials placed before him in proper perspective and dismissed the
petition. There is no error in the order of the learned Judge warranting
interference by this Court.
12.For the above reasons, the Civil Revision Petition stands
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C.R.P.(NPD)No.1009 of 2016
dismissed. No costs. Consequently, connected Miscellaneous petition is
closed.
21.12.2021
Index : Yes/No
Internet: Yes/No
kj
To
The District Munsif
Mannargudi.
V.M.VELUMANI,J.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.1009 of 2016
Kj
C.R.P.(NPD)No.1009 of 2016
and C.M.P.No.5663 of 2016
21.12.2021
https://www.mhc.tn.gov.in/judis
