Madras High Court
Natarajan vs Mn.Muthiah on 19 April, 2022
1 S.A.(MD)No.667 OF 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.667 of 2012 and
C.M.P.(MD)No.10991 of 2021
Shanmugavalli (Died)
1. Natarajan
2. Amaravathi
3. Mahalakshmi
4. Muthu
5. Bose
6. Ganapathi ... Appellants / Respondents 4 to 9/
Legal heirs of 1st Defendant
Vs.
N.Seeniammal (Died)
1. MN.Muthiah
2. N.Meenakshi ... Respondents / Appellants /
Plaintiffs
3. M.Murugayee @ Ammapillai
4. Madasamy Nadar ... Respondents / Respondents 2 & 3/
Defendants 2 & 3
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1/8
2 S.A.(MD)No.667 OF 2012
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree passed in A.S.No.9 of
2008 on the file of the II Additional Subordinate Judge,
Madurai, dated 27.02.2012 reversing the Judgment and
Decree passed in O.S.No.730 of 2000 on the file of the
Additional District Munsif, Madurai, dated 25.04.2006.
For Appellants : Mr.A.Sankara Ramasubramanian
For R-1 & R-2 : Mr.C.M.Mari Chellaiah Prabhu,
for M/s.Eddy and Embboss.
***
JUDGMENT
The defendants in O.S.No.730 of 2000 on the file of
the Additional District Munsif, Madurai Town, are the
appellants in this second appeal.
2. The suit was filed for the relief of permanent
injunction and mandatory injunction. The case of the plaintiffs
is that the suit property was originally a vacant site and was
purchased by Vellaichamy Nadar from one Madathi Ammal.
Vellaichamy Nadar had four sons of whom Nagaiah Nadar was
one. The said Nagaiah Nadar was the husband of the first
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plaintiff and father of the other two plaintiffs. Nagaiah Nadar
purchased his brothers' share in the suit property. The
allegation of the plaintiffs is that the defendants had
committed encroachment on the same and to remove the
same, the suit in question was filed. The defendant filed
written statement controverting the plaint averments. Based
on the divergent pleadings, the trial Court framed necessary
issues. The second plaintiff examined himself as P.W.1 and
marked Ex.A.1 to Ex.A.7. The first defendant Shanmugavalli
examined herself as D.W.1 and one Mahalingam was examined
as D.W.2. Ex.B.1 to Ex.B.3 were marked. After considering the
evidence on record, the trial Court by judgment and decree
dated 25.04.2006 dismissed the suit. Aggrieved by the same,
the plaintiffs filed A.S.No.9 of 2008 before the II Additional
Sub Court, Madurai. The first plaintiff had passed away in the
meanwhile. Likewise the first defendant also had passed away
and her legal heirs were brought on record. Before the first
appellate Court, the plaintiffs filed I.A.No.507 of 2010 for
appointment of Advocate Commissioner. The failure to seek
appointment of Advocate Commissioner before the trial Court
was one of the primary reasons which led to the dismissal of
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the suit. To fill up the said lacuna, before the first appellate
Court the plaintiffs took steps and the said I.A. was also
allowed. The Advocate Commissioner's report and plan were
marked as Ex.C.1 and Ex.C.2. Based on the same, the first
appellate Court set aside the judgment and decree passed by
the trial Court and decreed the suit as prayed for. The report
and plan of the Advocate Commissioner Ex.C.1 and Ex.C.2
formed part of the decree. Aggrieved by the same, this second
appeal came to be filed.
3. The legal heirs of the first defendant alone filed
the second appeal. On 22.03.2022, it was admitted on the
following substantial question of law:-
“ Whether the impugned judgment and
decree warrant interference on the ground that
the objections filed by the appellants were not
even dealt with by the first appellate Court? ”
4. Heard the learned counsel on either side.
5. When the records were called for, it was informed
that the suit records had been destroyed as per rules. It is
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seen that the suit was dismissed on 25.04.2006. The appeal
had been presented on 09.11.2006 but numbered as A.S.No.9
of 2008. It was disposed of on 27.02.2012. The second appeal
was filed on 18.09.2012. I am therefore at a loss to understand
as to how the suit records could have been destroyed so soon.
6. One of the specific grounds taken in the grounds of
appeal is that the objections were filed in time to the Advocate
Commissioner's report and that they have not been
considered. I went through the impugned judgment of the first
appellate Court and called upon the learned counsel
appearing for the respondents to point out as to where the
objections filed by the appellants had been dealt with.
Attention could not be drawn to any such discussion. The
learned counsel appearing for the appellants drew my
attention to the decision reported in 2000 (3) CTC 78
(Veppanathar Alias Karuppannan V. Kaliappan). It was
held therein, relying on the decision reported in AIR 1922
Mad.219 (Thottamma V. C.S.Subramaniayyan) that it is the
duty of the Court, whenever a Commissioner's report is
objected to, to hear objections in open Court. In this case, it
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was certainly open to the first appellate Court to reject the
objections and accept the Commissioner's report. But then,
the objections must have been duly considered. As per Order
26, Rule 10(2) CPC, report of the Commissioner would
constitute evidence in the suit and shall form part of the
record. Therefore, the first appellate Court was obliged to
consider the objections filed by the appellants. Since it has not
been done, the impugned judgment and decree become
vulnerable on that account. The impugned judgment and
decree are set aside. The matter is remanded to the file of the
first appellate Court. The first appellate Court shall take into
account the objections filed by the appellants and thereafter
give a disposal to the appeal on merits and in accordance with
law. The parties shall appear before the first appellate Court
on 11.06.2022.
7. This second appeal is allowed on these terms. No
costs. Consequently, connected miscellaneous petition is
closed.
19.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
https://www.mhc.tn.gov.in/judis
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The II Additional Subordinate Judge,
Madurai.
2. The Additional District Munsif,
Madurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.667 of 2012
19.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
