Madras High Court
Amalanathan vs Perianayagam on 25 February, 2021
C.R.P.No.3486 of 2018, dt.25.02.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.R.P.No.3486 of 2018
and
Cmp.No.19528 of 2018
1.Amalanathan
2.Kannikairaj ... Petitioners
Versus
1.Perianayagam
2.The Junior Engineer,
Office of the Junior Engineer,
Operation & Maintenance,
TNEB, Kedar,
Villupuram Taluk.
3.The Assistant Executive Engineer,
Office of the Assistant Executive Engineer,
Operation & Maintenance,
TNEB, Trichy Main road,
Opp. To Ezhumalai Poltechnic,
Villupuram.
4.The Executive Engineer,
Office of the Executive Engineer,
TNEB, East Pondy Road,
Villupuram.
5.The Superintendent Engineer,
Office of the Superintendent Engineer,
TNEB, East Pondy Road,
Villupuram. ... Respondents
https://www.mhc.tn.gov.in/judis/
1/8
C.R.P.No.3486 of 2018, dt.25.02.2021
Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decretal order dated
01.07.2017 in I.A.No.388 of 2014 in O.S.No.117 of 2014 passed by the
Principal District Munsif Court, Villupuram.
For Petitioners : Mr.Saravanan T.K.
For Respondents : No Appearance
ORDER
Challenging the order passed by the Court below in I.A.No.388
of 2014 in O.S.No.117 of 2014, dated 01.07.2017, the present Civil
Revision Petition is filed by the defendants 5 & 6.
2.The said suit in O.S. No. 117 of 2014 was filed by the first
respondent herein for permanent injunction restraining the defendants 1 to
4 from granting/effecting Electric Service connection to the suit property
in favour of the defendants 5 and 6 / revision petitioners herein. It appears
that already, the first respondent has filed a suit in O.S. No.310 of 2013 for
permanent injunction against the revision petitioners herein, restraining
them from putting up any constructions in the suit property as described in
A, B, C and D of the plaint schedule. Pending the suit in OS No.310 of
2013, the first respondent filed IA No. 832 of 2013 for interim injunction
and it was dismissed on 10.02.2014 on merits. Thereafter, the suit in OS
https://www.mhc.tn.gov.in/judis/
C.R.P.No.3486 of 2018, dt.25.02.2021
No.310 of 2013 itself was dismissed for non-appearance of the
plaintiff/first respondent herein on 03.03.2017. In the meantime, the first
respondent filed the present suit in O.S.No.117 of 2014 to restrain the
defendants 1 to 4 from granting/effecting Electric Service connection to
the suit property in favour of the defendants 5 and 6 / revision petitioners
herein. Pending the suit in OS No.117 of 2014, the Interlocutory
Application in I.A.No.388 of 2014 was filed for appointment of an
advocate commissioner and it was allowed on 01.07.2017.
3. It is the main contention of the revision petitioners that there
is no material placed in the application for the appointment of the
Advocate Commissioner. In this matter, there is no need for appointing the
Advocate Commissioner and there is no requirement for measuring the
property with the aid of the Surveyor. All these facts have not been
considered by the Court below. It is for the Electricity Department to
verify the ownership and provide Electricity connection.
4.In the present case, the same first respondent filed a suit in OS
No.310 of 2013 for permanent injunction restraining the revision
petitioners herein from putting up any construction in the suit property as
https://www.mhc.tn.gov.in/judis/
C.R.P.No.3486 of 2018, dt.25.02.2021
described in A, B, C and D of the plaint schedule. The said suit was
dismissed for default on 03.03.2017. Without considering all these
aspects, without providing any reasons for appointing the Advocate
Commissioner, the Court below appointed the Advocate Commissioner.
5.Though this Court ordered notice to the respondents and their
names also printed in the cause list, when the matter is called, none
appeared on behalf of the respondents.
6.Heard the counsel for the revision petitioners and perused the
materials available on record.
7.Upon perusing the records, it is seen that the first respondent
had already filed one suit in O.S.No.310 of 2013 against the revision
petitioners herein restraining them from putting up any construction in the
disputed land. Further, the Court below also heard the application for
interim injunction in IA No. 832 of 2013 in OS No.310 of 2013 and
passed a detailed order on 10.02.2014 refusing to grant interim injunction,
but no appeal has been filed to set aside the said order. The suit in OS
No.310 of 2013 came to be dismissed for default on 03.03.2017.
https://www.mhc.tn.gov.in/judis/
C.R.P.No.3486 of 2018, dt.25.02.2021
8.Under these circumstances, the present suit came to be filed
restraining the Electricity Board authorities from granting electricity
connection to the revision petitioners.
9.This Court is unable to understand that when the first
respondent already filed a suit in OS No.310 of 2013 for permanent
injunction to restrain the revision petitioners from putting up any
construction and the same came to be dismissed for default, the
entertainment of the relief as sought in the present application in OS
No.117 of 2014 itself is questionable. Under these circumstances, even the
revision petitioners are entitled for the electricity connection, the necessity
for the appointment of Advocate Commissioner is not necessary. It is for
the Electricity Board to decide whether the electricity connection can be
provided to them or not. However, the Court below simply, without
providing any reason, in a mechanical manner, allowed the application for
appointment of Advocate Commissioner. It is the duty of the Court below
to state the reason and the necessity for the appointment of the Advocate
Commissioner and how his report is going to help the Court to pass the
final Judgment. Even if there are justifiable grounds for such appointment,
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C.R.P.No.3486 of 2018, dt.25.02.2021
this Court is unable to understand that the relief in the main suit is not to
provide any electricity connection, in such case, how the first respondent
will be entitled to seek the relief, in the application, for appointment of
Advocate Commissioner, in which case, how his appointment is going to
be helpful for the first respondent is not known. The previous suit in OS
No.310 of 2013 was dismissed for default, wherein, the first respondent
sought similar prayer as in the present suit and no steps have been taken by
the first respondent to pursue the said case. The Court below had passed a
detailed order, while dismissing the application for interim injunction in
I.A.No.832 of 2013 in OS No. 310 of 2013 and come to the conclusion
that the first respondent herein is not entitled any such relief as sought for.
10.Thus, the Court below has not taken into consideration of all
these facts while passing the order for appointment of the Advocate
Commissioner. The order of appointment of Advocate Commissioner was
passed in a mechanical manner. Therefore, this Court is inclined to set
aside the order appointing an Advocate Commissioner and accordingly,
the order of the Court below is hereby set aside.
https://www.mhc.tn.gov.in/judis/
C.R.P.No.3486 of 2018, dt.25.02.2021
11. In the result, the order dated 01.07.2017 in I.A.No.388 of
2014 in O.S.No.117 of 2014 passed by the Principal District Munsif Court,
Villupuram is set aside. The Civil Revision Petition is allowed. No costs.
Consequently, the connected miscellaneous petition is closed.
25.02.2021
Index : yes
Internet : yes
Speaking Order:yes
klt
To
The Principal District Munsif Court, Villupuram.
https://www.mhc.tn.gov.in/judis/
C.R.P.No.3486 of 2018, dt.25.02.2021
KRISHNAN RAMASAMY, J.
klt
C.R.P.No.3486 of 2018
and
Cmp.No.19528 of 2018
25.02.2021
https://www.mhc.tn.gov.in/judis/
