Madras High Court
Abdul Gafoor vs Shajahan on 30 June, 2021
CRP.PD.No.3060 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.PD.No.3060 of 2018
and
C.M.P.No.17741 of 2018
Abdul Gafoor ... Petitioner
Vs.
Shajahan ... Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and final order dated 21.09.2017
made in I.A.No.413 of 2017 in O.S.No.213 of 2016 on the file of the
Principal District Munsif Court, Mayiladuthurai and allow the said
application.
For Petitioner : Mr.S.Sounthar
For Respondent : Mr.R.Raja Sundaraman
ORDER
This Civil Revision Petition is directed as against the fair and decretal
order passed in I.A.No.413 of 2017 in O.S.No.213 of 2016 dated
21.09.2017 on the file of the learned Principal District Munsif Court,
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CRP.PD.No.3060 of 2018
Mayiladuthurai, thereby dismissing the petition seeking for appointment of
Advocate Commissioner.
2. The petitioner is the defendant and the respondent is the plaintiff.
The respondent filed the suit for permanent injunction in respect of the suit
property comprised in S.No.183/2 new S.Nos.183/77, 183/90 and 183/92
classified as Natham admeasuring 15 cents. The said suit property also
consists of terraced house, trees and vacant land situated at Pallivasal Street,
Kadalangudi Village, Myladuthurai. While pending the suit, the petitioner
filed a petition for appointment for Advocate Commissioner for the reason
that he purchased the part of the suit property comprised in S.No.183/92
admeasuring 3714 sq.ft from one Soundarajan and he constructed thatched
house. He is in possession and enjoyment of the said house for the past
several years. Suppressing those facts, the respondent filed a suit and
threatened the petitioner as if the petitioner is trying to trespass into the suit
property. That apart, the respondent is trying to damage the suit property by
destroying all the materials evidence. Therefore, to find out the identity of
the suit property and also to note down the physical features, appointment
of Advocate Commissioner is very much necessary.
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CRP.PD.No.3060 of 2018
3. In this regard, the learned counsel for the petitioner relied upon the
judgment reported in 2016 (1) LW 159 (Nallama Naidu Vs. Paul Pandian),
in which it has been held as follows:-
"9. A closure analysis of the plaint pleadings and the
averments in the written statement of the 5th defendant exhibits
certain controversy with regard to physical feature. The
petitioner as well as the respondents have quarrel in respect of
their respective properties. The suit schedule contains specific
boundaries with measurements. Petitioner comes with a
version in his written statement as to the measurements and the
boundaries of the suit property. He heavily relies on his sale
deed, which has been executed in his favour by the first
respondent's brother. Although the suit may be an injunction
suit and the relief sought for may be a personal remedy, but it
relates to an immovable property. The property with respect to
which the relief of injunction sought for must be identified
clearly with measurements and boundaries, otherwise it will
lead to so many complications.
10. The controversy-arises from the pleadings of the
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CRP.PD.No.3060 of 2018
parties cannot be demonstrated before the Court by any
amount of oral evidence. In such circumstances, it would be
just and necessary for this Court to have the lie of the property,
physical features and measurements with respect to their
respective title deeds, that will enable the Trial Court to take a
correct decision in this matter. In this view of the matter, the
impugned order is unsustainable in law."
4. Though the suit filed for permanent injunction by the respondent,
the petitioner being defendant filed a petition seeking appointment of
Advocate Commissioner. As observed by this Court in the above judgment,
controversy arises from the pleadings of the parties cannot be demonstrated
before the Court by any amount of oral evidence. In such circumstances, it
would be just and necessary for this Court to have the lie of the property,
physical features and measurements with respect to their respective title
deeds, that will enable the Trial Court to take a correct decision in the suit.
Without considering the above facts and circumstances, the Court below
mechanically dismissed the petition seeking appointment of Advocate
Commissioner.
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CRP.PD.No.3060 of 2018
5. In view of the above discussion, this Civil Revision Petition is
allowed and the order passed in I.A.No.413 of 2017 in O.S.No.213 of 2016
dated 21.09.2017 is hereby set aside. The Court below is directed to appoint
an Advocate Commissioner within a period of two weeks from the date of
receipt of a copy of this order. Consequently, the connected Miscellaneous
Petition is closed. No costs.
30.06.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
To
1. The Principal District Munsif Court, Mayiladuthurai.
2. The Section Officer,
V.R.Section, High Court of Madras.
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.3060 of 2018
G.K.ILANTHIRAIYAN,J.
Kv
C.R.P.PD.No.3060 of 2018
30.06.2021
https://www.mhc.tn.gov.in/judis/
