K.Sundari vs G.Venkatasubramaniam
2022 Latest Caselaw 9440 Mad

                                                                              C.R.P.(NPD)No.1249 of 2016

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  DATED: 06.06.2022
                                                         CORAM:
                                  THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
                                             C.R.P.(NPD)No.1249 of 2016
                                             and C.M.P.No.6827 of 2016

               1.K.Sundari
               2.Kumar
               3.Kuzhanthaivelan
                                                                                         ...Petitioners
                                                          Versus
               G.Venkatasubramaniam
                                                                                       ...Respondent


               PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
               India, against the Order and Decree dated 14.12.2015 made in I.A.No.834 of
               2015 in O.S.No.352 of 2014, on the file of the Additional District Munsif Court,
               Cuddalore.


                                        For Petitioner    :Mr.D.Ravichander
                                        For Respondent    :No Appearance
                                                     O R D E R

Aggrieved by an order dismissing the petition seeking appointment

of Advocate Commissioner to note down the physical features of the building

located in the suit property, the plaintiffs/petitioners have come up with this

revision.

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C.R.P.(NPD)No.1249 of 2016

2. The petitioners have filed a suit for bare injunction against the

respondents in O.S.No.352 of 2014 on the file of the Additional District Munsif

Court, Cuddalore. The petitioners sought for an injunction restraining the

respondent from demolishing any portion of the building in the suit property by

a decree of permanent injunction.

3. According to the revision petitioners, they are the tenants of the

suit property. Since the respondent who is a neighbour, attempted to demolish

a portion of the building in the suit property, they were constrained to file a suit

for injunction against the respondent.

4. The respondent filed his written statement disputing the

description of the suit property. According to the respondent, the description

of the property is not correct and the revision petitioners/plaintiffs have given

wrong boundaries to the suit property. He further denied the allegation in the

plaint that he attempted to demolish the building in the suit property.

5. The revision petitioners/plaintiffs filed a petition in I.A.No.834

of 2015, seeking appointment of Advocate Commissioner to note down the

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C.R.P.(NPD)No.1249 of 2016

physical features of the building in the suit property. In support of the said

application, it was averred that even prior to filing of suit, the respondent in the

guise of demolishing their own property, had damaged a portion of the suit

building and only on objection from the petitioners, their attempt of demolition

was stopped. Noting down the physical features of the building will show the

highhanded act of the respondents and it will enable the Court to decide the

controversy in the suit. In the counter to the said application, it was reiterated

by the respondent that the description of the suit property is wrong and the

revision petitioners have given wrong boundaries and unclean notice.

6. The learned District Munsif, dismissed the application on the

ground that it is a settled law that in a suit for injunction, appointment of

Advocate Commissioner is not necessary.

7. Aggrieved by the same, the plaintiffs/petitioners have come up

with this revision.

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C.R.P.(NPD)No.1249 of 2016

8. Heard the arguments of the learned counsel for the petitioner

and there is no representation for the respondent.

9. Perused the pleadings of the parties enclosed in typed set of

papers. In the Pleadings of the parties, there is a controversy with regard to the

description of the suit property. The respondent disputed the plaint description

in the written statement as well as the counter filed in I.A.No.834 of 2015.

When there was a dispute with regard to the description of the suit property,

the best way to find out the truth would be by appointing an Advocate

Commissioner to note down the physical features and the Advocate

Commissioner's report would reveal the real facts, so as to enable the court to

solve the controversy before this Court. The Court below completely over

looked the controversy in the pleadings with regard to the description of the suit

property.

10. In support of his contention, the learned counsel for the

petitioner has relied on the judgment reported in Manu/TN/0754/2005 in Settu

Vs. Raja and others, wherein it was observed as follows:

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C.R.P.(NPD)No.1249 of 2016

“Thus the main point involved in the suit appears to be - Whether the Plaintiff has really encroached a portion of the pathway interfering with the Defendants pathway right. Thus there is a bonafide dispute regarding the location of the house. Regarding this, evidence can be obtained only by local inspection and measuring the suit property with the help of a surveyor. The Plaintiff having filed the suit for permanent injunction is bound to prove his case. All opportunity must be afforded to him to produce the best possible evidence available. The Appointment of Commissioner and the Commissioner's report is one such mode of proof to elucidate the physical features and such other aspects. By appointment of an Advocate Commissioner considerable oral evidence would be reduced. No serious prejudice would be caused to the Respondents/Defendants by appointment of an Advocate Commissioner.”

11. It is also appropriate to mention the observation of this Hon'ble

Court reported in 2016-1-LW-159 in Bose Vs. Chokalingam, which reads as

follows:

“9. A closure analysis of the plaint pleadings and the averments in the written statement of the 5th defendant exhibits certain controversy with regard to physical

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C.R.P.(NPD)No.1249 of 2016

feature. The petitioner as well as the respondents have quarrel in respect of their respective properties. The suit schedule contains specific boundaries with measurements. Petitioner comes with a version in his written statement as to the measurements and the boundaries of the suit property. He heavily relies on his sale deed, which has been executed in his favour by the first respondent's brother. Although the suit may be an injunction suit and the relief sought for may be a personal remedy, but it relates to an immovable property. The property with respect to which the relief of injunction sought for must be identified clearly with measurements and boundaries, otherwise it will lead to so many complications.

10. The controversy-arises from the pleadings of the parties cannot be demonstrated before the Court by any amount of oral evidence. In such circumstances, it would be just and necessary for this Court to have the lie of the property, physical features and measurements with respect to their respective title deeds, that will enable the Trial Court to take a correct decision in this matter.”

12. The utility of Commissioner's report based on local

investigation was well explained in Ponnuswamy Pandaram Vs. Salem

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C.R.P.(NPD)No.1249 of 2016

Vaiyappamalai Jangamar Sangam reported in 1985 1 MLJ P.380, wherein his

Lordship Mr.Justice Nainar Sundaram, observed as follows:

“A controversy, as we could see from the pleadings, has

arisen as to whether the constructions put up by the third

defendant are within his land or whether they have

encroached into the lands of the plaintiff. A local

investigation is the best way to find out the position and the

party, namely, the third defendant coveting to place the

evidence before the court through local investigation by

the Commissioner cannot be shut out of that right. A

misconception has weighed in the mind of the Court below

when it reasoned that there is no dispute about the

ownership of S.No.289/1 by the third defendant. That is

not the point in issue, Shutting out the evidence which a

party is entitled to place before Court to substantiate his

case, definitely decides that right 6f the party, adversely

against him and in this view, the order passed by the Court

below is a 'case decided' and apart from that, on merits the

order passed by the Court below comes within the mischief

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C.R.P.(NPD)No.1249 of 2016

of the ratio adumbrated in S.115 of the Code. There has

been a failure to exercise jurisdiction vested in it by the,

Court below to a patent misconception of the position and

this obliges me to interfere in revision.

13. In the present case, there is a definite controversy in the

pleadings of parties with regard to description of suit property. Hence, applying

the ratio in the above referred cases. I hold appointment of Advocate

Commissioner to identify the suit property and to note down the physical

features is absolutely necessary and hence the order impugned in revision is

liable to be set aside.

14. Further in the affidavit filed in support of the petition seeking

appointment of Advocate commissioner, the revision petitioner also submitted

that the defendant already damaged the portion of the suit building and physical

features available on ground will enable the Court to come to a correct

conclusion regarding the issue involved in this Court. If the portion of the suit

building is already damaged, the Advocate Commissioner during local

inspection can very well note the same in the presence of respective parties and

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C.R.P.(NPD)No.1249 of 2016

mention it in his report before the Court below. It will enable to the court to

understand the cause of action or the scenario which compelled the plaintiff to

knock at the doors of Court of law.

15. In view of the controversy in the pleadings of the parties with

regard to the description of the property, and also in view of the averments

found in the affidavit filed in support of the petition seeking appointment of

Advocate Commissioner that there was an attempt on the part of the defendant

to demolish a portion of the building earlier, this Court deems it appropriate to

appoint an Advocate Commissioner to identify the suit property based on the

description found in plaint and note down the physical features found thereon.

Therefore, the order passed in I.A.No.834 of 2015 in O.S.No.352 of 2014 is set

aside and the said application is allowed with above said direction to the

Advocate Commissioner. Consequently, connected miscellaneous petition is

closed. No costs.

06.06.2022

ub

Index: Yes/ No Speaking Order / Non-Speaking Order

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C.R.P.(NPD)No.1249 of 2016

S.SOUNTHAR, J.

ub

To The Additional District Munsif Court, Cuddalore.

C.R.P.(NPD)No.1249 of 2016

06.06.2022

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