Madras High Court
R.Parthasarathy vs Ammu on 17 November, 2021
C.R.P.(PD).No.2446 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(PD).No.2446 of 2021
and
C.M.P.No.18529 of 2021
R.Parthasarathy .. Petitioner
Vs.
Ammu .. Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, praying to set aside the fair and decreetal order dated
15th April 2021 passed in I.A.No.1 of 2019 in A.S.No.14 of 2018 on the file
of the learned Sub-Ordinate Judge of Tiruvallur.
For Petitioner : Mr.J.R.K.Bhavanantham
******
ORDER
Challenge in this Revision is to the order of the appellate Court made
in I.A.No.1 of 2019 in A.S.No.14 of 2018.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2446 of 2021
2. The said application was filed by the appellant seeking
appointment of Advocate Commissioner to note down the physical features
with specific instructions to fix the suit property within four boundaries as
mentioned in the sale deed dated 16.11.2017 marked as Ex.A6 in the suit.
3. The plaintiff sued for declaration of his title and permanent
injunction. The suit was dismissed by the trial Court on the finding that the
plaintiff has not proved the exact identity of the suit property. Pending
appeal as against the judgment of the trial Court, the plaintiff has come up
with this instant application seeking appointment of Advocate
Commissioner to identify the property.
4. The learned appellate Judge had rightly, in my opinion, dismissed
the application on the ground that the application is belated. The learned
appellate Judge had also pointed out that merely because the trial Court had
held that no steps have been taken to have a Commissioner appointed, the
appellant cannot seek appointment of Commissioner in the appellate Court.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2446 of 2021
5. This Court had held that the party seeking appointment of
Commissioner in the appellate Court must satisfy the requirements of Order
XLI Rule 27 of the Code of Civil Procedure also. I do not find any
pleadings in the affidavit filed in support of this application which would
satisfy the requirements under Order XLI Rule 27 of the Code of Civil
Procedure relating to introduction of evidence at the appellate stage.
6. I therefore do not see any illegality or material irregularity in the
order of the appellate Court to warrant interference at my hands in the
Revision under Article 227 of the Constitution of India. Therefore, the
Revision fails and it is accordingly dismissed. No costs. Consequently, the
connected miscellaneous petition is closed.
7. Mr.J.R.K.Bhavanantham, learned counsel appearing for the
petitioner would express an apprehension that the learned appellate Judge
had almost decided the appeal while dismissing the application for
appointment of Commissioner.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2446 of 2021
8. A very detailed order has been written by the learned appellate
Judge. Suffice to observe that the learned appellate Judge will dispose of
the appeal without being influenced by any of the observations in the order
impugned in this Revision.
17.11.2021
dsa
Index : No
Internet : Yes
Speaking order
To
The Sub-Ordinate Judge, Tiruvallur.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2446 of 2021
R.SUBRAMANIAN, J.
dsa
C.R.P.(PD).No.2446 of 2021
17.11.2021
https://www.mhc.tn.gov.in/judis
