Cannapan vs Dhanasekaran
2021 Latest Caselaw 22505 Mad

                                                                       C.R.P.(PD)No.3635 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 17.11.2021

                                                      CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                             C.R.P.(PD)No.3635 of 2016
                                            and C.M.P.No.18525 of 2016

                     1.Cannapan
                     2.Devaraja @ Rajagopal                                    .. Petitioners
                                                            Vs.

                     Dhanasekaran                                              .. Respondent

                     PRAYER: Civil Revision Petition filed under Article 227 of the

                     Constitution of India, against the fair and decretal order dated 22.06.2016

                     made in I.A.No.223 of 2016 in O.S.No.466 of 1996 on the file of the

                     Principal District Munsif Court, Pondicherry.



                                         For Petitioners   : Mrs.P.Veena Suresh

                                         For Respondent    : Not ready in notice


                                                      ORDER

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.3635 of 2016

Civil Revision Petition is filed against the fair and decretal order

dated 22.06.2016 made in I.A.No.223 of 2016 in O.S.No.466 of 1996 on

the file of the Principal District Munsif Court, Pondicherry.

2.The petitioners are the plaintiffs and respondent is the defendant

in O.S.No.466 of 1996 on the file of the Principal District Munsif Court,

Pondicherry. The petitioners filed the said suit for declaration and

possession. Originally, the suit was dismissed on 29.10.1999. The

petitioners filed A.S.No.88 of 2000 challenging the said judgment and

decree. The learned First Appellate Judge after framing additional issues,

remanded the suit with a direction to the petitioners to apply for

appointment of Advocate Commissioner. After remand, the petitioners

filed I.A.No.953 of 2003 for appointment of Advocate Commissioner. The

learned Judge by the order dated 21.02.2005 appointed Advocate

Commissioner to measure the suit property along with the help of

surveyor. Subsequently, at the instance of the petitioners, the warrant

issued to the Advocate Commissioner was amended and amended

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.3635 of 2016

warrant was issued on 06.03.2013. As per amended warrant, the

Advocate Commissioner and surveyor measured the suit property and

filed report. The petitioners filed objections to the report on 12.03.2014

and filed present I.A.No.223 of 2016 in O.S.No.466 of 1996 under Order

XXVI Rule 1 read with Section 151 of Civil Procedure Code for an order

of issuing summons to the Advocate Commissioner and Director of

Survey Department to depute the surveyor to appear before the Court to

produce the document and to give evidence.

3.According to the petitioners, as regards measurement and

location of suit property, it becomes necessary to examine the surveyor.

The respondent filed counter affidavit and stated that the petitioners have

filed present application only to drag on the proceedings as

Commissioner's report is not in their favour. The petitioners filed two

objections to the Commissioner's report. The affidavit filed by the

petitioners is bereft of particulars, vague and no reason given by them for

issuing summons to the Advocate Commissioner, surveyor and prayed for

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.3635 of 2016

dismissal of the said I.A.

4.The learned Judge considering the averments in the affidavit and

counter affidavit, dismissed the application holding that the petitioners

have not stated any specific reason as to why the witness to be summoned

and examined.

5.Against the said fair and decretal order dated 22.06.2016 made

in I.A.No.223 of 2016 in O.S.No.466 of 1996, the petitioners have come

out with the present Civil Revision Petition.

6.Heard the learned counsel appearing for the petitioners and

perused the entire materials on record.

7.From the materials on record, it is seen that in the appeal filed by

the petitioners, the learned First Appellate Judge by the judgment and

decree dated 24.01.2003, set aside the judgment and decree passed in

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.3635 of 2016

O.S.No.466 of 1996, framed additional issues and remanded the suit to

the trial Court for fresh disposal of the suit. The Appellate Court has

given liberty to the petitioners and respondent to let in additional

evidence. The Appellate Court also directed the petitioners to apply for

appointment of Advocate Commissioner to measure the suit property. On

the application filed by the petitioners in I.A.No.953 of 2003, the

Advocate Commissioner was appointed by the order dated 21.02.2005.

The Advocate Commissioner along with surveyor inspected, measured the

property and filed his report. At the time of inspection, the 2nd petitioner

was present along with Advocate Commissioner and he assisted the

Advocate Commissioner to execute the warrant. At the instance of the

petitioners, warrant of Commission was amended. Again Advocate

Commissioner inspected the property along with surveyor and filed his

report. The petitioners filed two objections to the reports of the Advocate

Commissioner. After filing such objections, the petitioners have filed

present I.A. to issue summons to the Advocate Commissioner and to

direct the Director of Survey Department to depute surveyor to appear

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.3635 of 2016

before the Court to produce the document and to give evidence. The

petitioners, in the affidavit filed in support of the above application except

stating that as regards to measurement and location of the suit property, it

becomes necessary to examine the surveyor, have not given any reason as

to why evidence of the Advocate Commissioner as well as surveyor is

necessary. The affidavit filed by the petitioners is vague and bereft of

particulars. The Advocate Commissioner has already inspected and

measured the suit property with the help of Surveyor in the presence of

2nd petitioner and filed his report. The petitioners have filed two objections

to the reports of the Advocate Commissioner. It is for the petitioners to

bring it to the notice of the Court, the objections filed by them to the

reports of the Advocate Commissioner and the learned Judge will

consider the report and objections and pass orders in the judgment.

8.It is well settled that report of the Advocate Commissioner is only

to assist the Court. It is for the Court to consider the same while deciding

the issue and pass appropriate orders. As per Order XXVI Rule 10(2) of

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.3635 of 2016

C.P.C., the Advocate Commissioner may be examined in the open Court

with regard to his report or with the permission of the Court by any of the

parties to the suit. In the present case, the petitioners have filed present

I.A. for examination of the Advocate Commissioner as well as surveyor.

The learned Judge considering the materials placed before him, rejected

the request of the petitioners to examine the Advocate Commissioner.

There is no error or irregularity in the order of the learned Judge

warranting interference by this Court.

9.For the above reasons, the Civil Revision Petition stands

dismissed. No costs. Consequently, connected Miscellaneous Petition is

closed.

17.11.2021

Index : Yes/No Internet: Yes/No kj

V.M.VELUMANI,J.

https://www.mhc.tn.gov.in/judis C.R.P.(PD)No.3635 of 2016

Kj

To

The Principal District Munsif Pondicherry.

C.R.P.(PD)No.3635 of 2016 and C.M.P.No.18525 of 2016

17.11.2021

https://www.mhc.tn.gov.in/judis