Madras High Court
Mariammal vs Veeraraghavan on 19 January, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:19.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
C.R.P(PD)(MD)NO.637 OF 2017
and
C.M.P(MD)No.2888 of 2017
1.Mariammal
2.Rukmani :Revision Petitioners/Petitioners
.vs.
1.Veeraraghavan
2.Ramachandran :Respondents/Respondents
PRAYER: Civil Revision Petition filed under Section 227 of the
Constitution of India praying this Court to set aside the fair and
decretal order made in I.A.No.44 of 2016 in A.S.No.10 of 2016,
dated 3.2.2017, on the file of Sub-Court, Virudhunagar.
For Petitioners :Mr.K.Sekar
For Respondents :Mr.C.Jeya Prakash
ORDER
********
This Civil Revision Petition is filed seeking to set aside the fair
and decretal order made in I.A.No.44 of 2016 in A.S.No.10 of 2016,
dated 3.2.2017, on the file of Sub-Court, Virudhunagar.
https://www.mhc.tn.gov.in/judis
2.The respondents herein have filed the suit in O.S.No.86 of
2012, on the file of the District Munsif Court, Virudhunagar against
the Petitioners herein for the relief of declaration, mandatory
injunction and for other reliefs. After trial, the suit was decreed.
Challenging the said judgment and decree passed by the District
Munsif,Virudhunagar, the Petitioners herein have filed an appeal
before the Sub-Court, Virudhunagar in A.S.No.10 of 2016 and also
they have filed an application for appointment of an Advocate
Commissioner in I.A.No.44 of 2016.The first appellate Court after
considering the facts, dismissed the said application in I.A.No.44 of
2016.Challenging the said dismissal order, the Petitioners have filed
the present Civil Revision Petition before this Court.
3.The learned counsel for the Petitioners would submit that
though there was no application filed before the trial Court and no
Advocate Commissioner was appointed and no report was filed,
however, in the order, the learned Judge has stated that before the
trial Court an Advocate Commissioner was already appointed and
report was also filed and marked, which is an erroneous finding. It
is not the absolute wall of the respondents and it is a common wall
and put up with tiles in the wall.Therefore, if the Advocate
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Commissioner is appointed to inspect the suit wall, it will enable the
appellate Court to give a correct finding in the appeal. However, the
first appellate Court had appreciated the facts and dismissed the
application on technical grounds, which warrants interference by
this Court.
4.The learned counsel for the respondents would submit that
the Petitioners have not filed any application before the trial Court
during the pendency of the suit. But they have filed an application
before the appellate Court and that they have not even given the
valid reason as to why they have filed such an application before
the appellate Court and they have filed this application to fill up the
lacunae and to collect evidence through the Advocate Commissioner
and therefore in these circumstances, there is no merit in the
revision and the same is liable to be dismissed.
5.Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
6.Admittedly, the respondents have filed a suit in O.S.No.86
of 2012 and got a decree and challenging the said judgment and
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decree passed by the District Munsif Court, Virudhunagar, the
Petitioners have filed an appeal before the Subordinate Judge,
Virudhunagar in A.S.No.10 of 2016 and along with the grounds of
appeal, the Petitioners herein have filed an application in I.A.No.44
of 2016 for appointment of an Advocate Commissioner to inspect
the suit wall and also to file a report. Though the learned counsel for
the Petitioners would submit that it is a common wall which was also
admitted by the respondent, the trial Court had failed to appreciate
the same and therefore they have filed an application before the
appellate Court. The suit is for declaration to declare that the suit
wall is the absolute wall of the respondents and for mandatory
injunction for removing the encroachments made by the Petitioners
herein and the trial Court framed issues and after trial, decreed the
suit and the Petitioners herein have filed this application in order to
fill up the lacunae and it is only a matter of fact and appreciation of
evidence. As far as the existence of the suit wall is concerned, it is
not disputed by either side and whether the wall is a common wall
or not is a matter for evidence. To collect evidence, an Advocate
Commissioner cannot be appointed and further the existence of the
wall is not disputed by both the parties. Therefore, in these
circumstances, there is no merit in the revision and the same is
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liable to be dismissed.
7.Accordingly, the Civil Revision Petition is dismissed. No
costs. Consequently, connected Miscellaneous Petition is dismissed.
19.01.2022
Index:Yes/No
Internet:Yes/No
vsn
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 Sub-Judge,
Virudhunagar.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
P.VELMURUGAN,J.
vsn
0RDER MADE IN
C.R.P(PD)(MD)NO.637 OF 2017
and
C.M.P(MD)No.2888 of 2017
19.01.2022
https://www.mhc.tn.gov.in/judis
