Madras High Court
Paul Thiraviyam vs Ramiah on 24 January, 2022
C.R.P.(MD) No.1733 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.01.2022
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.1733 of 2017
and
C.M.P.(MD) No.9422 of 2017
Paul Thiraviyam ... Petitioner
vs.
1.Ramiah
2.Esakkiyappa
3.Maasaanam
4.Nanguneri Taluk, Kalakadu Via, Pathai,
Perumal Sannathi Street,
Vasutheva Perumal Kovil through its Agthaar
Dharmaraj Iyer,
S/o.Venkateswaran
now residing at
Perumal Kovil Street,
Sehncottah, Tirunelveli District. ... Respondents
PRAYER:- This Petition is filed under Article 227 of the Constitution of India,
to set aside the fair and decreetal order passed in I.A.No.683 of 2017 in O.S.No.
158 of 2007 dated 01.08.2017 on the file of the Additional District Munsif
Court, Nanguneri.
For Petitioner : Mr.R.T.Arivukumar for
Mr.N.GA.Natraj
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C.R.P.(MD) No.1733 of 2017
ORDER
The plaintiff, who is the revision petitioner before this Court, is
challenging the dismissal of the application seeking reissue of the warrant to the
Advocate Commissioner to inspect the petition premises with the assistance of
the Taluk Surveyor, measure the suit properties and submit a detailed report
with measurements.
2.The short facts are as follows:-
3.The plaintiff had filed a suit O.S.No.158 of 2007 on the file of the
learned Additional District Munsif, Nanguneri for mandatory injunction and for
permanent injunction. The said suit was dismissed by judgment dated
12.03.2008 on the ground that the petitioner herein has not sought for the
appointment of a Surveyor to assist the Advocate Commissioner and therefore,
the petitioner was not entitled to the decree as claimed for. This non-speaking
order was taken up on appeal by the plaintiff in A.S.No.107 of 2008. In the said
appeal, the Advocate Commissioner was appointed by order in I.A.No.193 of
2011, who had submitted his report. Thereafter, the plaintiff had once again
filed I.A.No.7 of 2012 in I.A.No.193 of 2011 in A.S.No.107 of 2008 for a
direction to the Advocate Commissioner to measure the suit properties with the
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C.R.P.(MD) No.1733 of 2017
assistance of FMB sketch that has been filed by the petitioner/plaintiff. This
petition came to be allowed by order dated 12.09.2013. The learned Subordinate
Judge, Valliyoor had directed the Advocate Commissioner to take the assistance
of the Taluk Surveyor and submit a detailed report with the help of FMB
records submitted by the petitioner. Thereafter, A.S.No.107 of 2008 was
remitted back to the trial Court for fresh consideration. The report of the
Advocate Commissioner in I.A.No.193 of 2011 was directed to be forwarded to
the trial Court and directions were issued to the trial Court to consider this
report and pass orders. After remand, the petitioner/plaintiff has come forward
with the impugned application for the following reliefs:-
“,j;Jld; ,izj;Js;s mgpltpl;;by; fz;l fhuzq;fshy; fdk;
Nfhh;l;lhh; mth;fs; fpUig nra;J kD jgrpy; nrhj;Jf;fis fpuhk tiuglk;
kw;Wk; ej;jk; epytupjpl;lj;jpd;gb kPz;Lk; ghh;itapl;L mwpf;if
jhf;fy; nra;a VJthf t.k.vz;.193/2011-y; epakpf;fg;gl;l mNj
tof;fwpQiu (,yq;Nfhghyd;) Mizauhf epakpj;J mtUf;F cjtpahf
jhYfh rh;Ntaiu epakdk; nra;J mth; %yk; kD jgrpy; nrhj;Jf;fis
mstPL nra;J é];jpfis Fwpj;J msTfs; rfpjk; tiuglj;Jld; xU tpupthd
mwpf;if jhf;fy; nra;a cj;jutplNtz;b kDjhu;/thjp tzf;fkha;
gpuhh;j;jpf;fpwhh;”
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C.R.P.(MD) No.1733 of 2017
4.This petition has been dismissed by the learned Judge, against which
the present revision has been filed. The learned Judge has observed the conduct
of the petitioner in not proceeding with the trial, while dismissing the said
petition. Aggrieved by the same, the petitioner is before this Court.
5.Heard the learned counsels on either side.
6.The first appellate Court in its judgment in A.S.No.107 of 2008 had
remitted the matter with the following directions:-
“3.mry; tof;fhdJ kPz;Lk; tprhuiz ePjpkd;wj;jpw;F
kPl;lDg;Gif nra;ag;gl;L tprhuiz ePjpkd;wk; 1 Kjy; 3
gpujpthjpfSf;F vjph; tof;Fiu jhf;fy; nra;a Nghjpa fhy mtfhrk;
toq;fpAk; gpd;dh; cgajug;gpdh;fs; jug;gpy; Kd;epWj;jg;gLk;
tha;nkhop kw;Wk; Mtz rhl;rpaq;fis ed;F guprPyid nra;J ,e;j
Nky;KiwaPl;L tof;fpy; tof;fpil kD vz;.193/2011y; jhf;fy;
nra;ag;gl;Ls;s Mizau; mwp;f;if kw;Wk; tiuglj;ifAk; Ma;tpw;F
vLj;Jf;nfhz;L jFjpapd; mbg;gilapy; mry; tof;if jPh;khdpf;f Ntz;Lk;
vd;W Mizaplg;gLfpwJ.
4.,e;j tof;fpy; tof;fpil kD vz.193/2011y; jhf;fy; nra;ag;gl;l
Mizau; mwp;f;if kw;Wk; tiuglj;ij tprhuiz ePjpkd;wj;jpw;F mDg;gp
itf;f cj;jutplg;gLfpwJ.”
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C.R.P.(MD) No.1733 of 2017
7.Therefore, while remitting the matter, the appellate Judge had clearly
stated that the trial Court should refer to the Advocate Commissioner's report as
given in I.A.No.193 of 2011. The petitioner has thereafter taken out this
application, that too after the matter had been adjourned on several occasions
for enquiry. The learned Judge has set out the conduct of the petitioner as
follows:-
“A.S. 107/08y; Mizau; mwp;f;if kw;Wk; tiuglkhdJ 28.03.2016
md;W ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;bUg;gJ njupa tUfpwJ. ,e;j
Mizah; mwpf;ifia vjph;j;J ,e;j kDjhuh; Nky;KiwaPl;L tof;fpy;
Ml;Nrgid Fwpg;ghiz vijAk; jhf;fy; nra;atpy;iy vd;gJk; ,JNghd;w kD
vijAk; jhf;fy; nra;atpy;iy vd;gJk; njupa tUfpwJ.
mry; tof;F ,e;j ePjpkd;wj;jpw;f;F kPl;lDg;Gif nra;ag;gl;l
gpd;G 15.06.2016ypUe;J ,e;j ePjpkd;wj;jpy; epYitapy; ,Ug;gJk;
21.11.2016 md;W tof;F tprhuizf;fhf tha;jh Nghlgl;bUg;gJk; md;iwa
jpdj;jpy; ,e;j kDjhh; jug;gpy; fl;lis 6 tpjp 17d; fPo; kD jhf;fy;
nra;ag;gl;L me;j kD tprhuiz eilngw;wpUg;gJk; kPz;Lk; ,e;j kDjhh;
jug;gpy; thRNjth; ngUkhs; Nfhtpypy; mf;jhiu xU jug;ghf Nru;f;f
Nfhhp 14.12.2016y; kD jhf;fy; nra;ag;gl;L me;j kDtpd; kPJ tprhuiz
eilngw;W mJ mDkjpf;fg;gl;l gpd;G kPz;Lk; rPu;jpUj;jy; kD jhf;fy;
nra;ag;gl;L mDkjpf;fg;gl;bUg;gJk; mjd; mbg;gilapy; $Ljy; vjpUiu
jhf;fy; nra;a tha;jh Nghlg;gl;L kPz;Lk; tof;F tprhuizf;fhf 12.06.2017
md;W tha;jh Nghlg;gl;bUg;gJ njupa tUfpwJ.
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C.R.P.(MD) No.1733 of 2017
12.06.2017ypUe;J tof;F tprhuizf;fhf 15.06.2017 19.06.2017
kw;Wk; 21.06.2017 tha;jh Nghlg;gl;bUg;gJk; 21.06.2017 md;W
kDjhh; ,e;j kDit jhf;fy; nra;jpUg;gJk; njhpa tUfpwJ. Nky;KiwaPl;L
ePjpkd;wj;jpy; jhf;fy; nra;j Mizah; mwpf;ifapy; FiwghL ,Ug;gJ
kDjhUf;F njupe;jpUf;Fk; epiyapy; mry; tof;F ,e;j ePjpkd;wj;jpw;F
kPl;lDg;Gif nra;ag;gl;l mjhtJ 1 Mz;L fhykhf ,e;j kDtpid kDjhh;
jug;gpy; jhf;fy; nra;atpy;iy vd;gJ njhpa tUfpwJ.”
8.Before the appellate Court, the petitioner had taken out an application
I.A.No.7 of 2012 in I.A.No.193 of 2011 in A.S.No.107 of 2008, wherein the
petitioner/plaintiff had sought for a direction to the Advocate Commissioner to
measure the suit property as per the FMB sketch provided by the plaintiff. The
Advocate Commissioner had originally filed a report in I.A.No.193 of 2011.
Thereafter, the petitioner had filed an interlocutory application in this I.A.No.
193 of 2011 and that petition was also ordered. Now, after the remand, the
applicant has come forward with the instant application and the only reason for
seeking the reissue is to direct the Advocate Commissioner to refer to the
village map. Already there are two reports on file and the remand is only to
consider the report in I.A.No.193 of 2011 and also the subsequent report in the
said interlocutory application. The petitioner cannot expand the scope of the
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C.R.P.(MD) No.1733 of 2017
remand by seeking fresh directions to the Advocate Commissioner. That apart,
the finding of the Court below regarding the conduct of the petitioner in
protracting the suit has also got to be taken note of.
9.In these circumstances, I do not see any reason to reappreciate the order
passed by the learned Additional District Munsif, Nanguneri. Consequently, the
Civil Revision Petition stands dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
Index : Yes / No 24.01.2022
Internet : Yes / No
mm
To
The Additional District Judge,
Nanguneri.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1733 of 2017
P.T.ASHA, J.
mm
C.R.P.(MD) No.1733 of 2017
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1733 of 2017
24.01.2022
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