Suyambu vs Balakrishnan
2022 Latest Caselaw 9964 Mad

                                                                        CRP(PD)(MD)No.1817 of 2021


                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 14.06.2022

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE B.PUGALENDHI

                                        CRP(PD)(MD)No.1817 of 2021 and
                                          CMP(MD) No.9746 of 2021

                     Suyambu                                                ... Petitioner
                                                        Vs

                     1.Balakrishnan

                     2.The Commissioner of Municipality,
                       Thoothukudi Corporation,
                       Thoothukudi.

                     3.The Town Planning Officer,
                       Thoothukudi Corporation,
                       Thoothukudi.                                         ... Respondents

                     Prayer: Petition filed under Article 227 of the Constitution of India, to
                     call for the records relating to the order, dated 07.09.2021, made in
                     I.A.No.1 of 2020, in O.S.No.70 of 2020, on the file of the District
                     Munsif Court, Thoothukudi and set aside the same.




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https://www.mhc.tn.gov.in/judis
                                                                       CRP(PD)(MD)No.1817 of 2021



                                  For Petitioner   : Mr.J.Anandkumar
                                  For R1           : Mr.S.Selva Aditya for
                                                     Mr.G.Prabhu Rajadurai
                                  For R2 & R3      : Mr.Shaji Bino
                                                     Special Government Pleader

                                                   ORDER

This Civil Revision Petition is filed as against the order

dated 07.09.2021 made in I.A.No.1 of 2020 in O.S.No.70 of 2020, on

the file of the District Munsif Court, Thoothukudi.

2.The petitioner herein filed a suit in O.S.No.70 of 2020,

before the District Munsif Court, Thoothukudi, seeking declaration,

declaring that the suit second schedule property is a common pathway

and for a permanent injunction. Pending the suit, he has also taken up

an application in I.A.No.1 of 2020, for appointment of an Advocate

Commissioner that the first respondent/first defendant is attempted to

encroach upon the petitioner/plaintiff's common pathway and attempted

to construct compound wall. In the said I.A.No.1 of 2020, though the

https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.1817 of 2021

first respondent/first defendant has denied the averments raised in the

application, he has not raised any serious objection for appointment of

Advocate Commissioner. However, the trial Court dismissed the

application on the ground that the plaintiff cannot take out an

application for appointment of Advocate Commissioner, to prove the

possession of the suit second schedule property with him. Aggrieved

over the said dismissal order, the present Civil Revision Petition is

filed.

3.The learned counsel appearing for the revision petitioner

submits that since the first respondent attempted to make improvements

in the suit second schedule property and in order to prove such

improvements, it is essential to note down the physical features of the

suit second schedule property, by way of a Commissioner's Report and

hence the petitioner/plaintiff has filed the application in I.A.No.1 of

2020, for appointment of Advocate Commissioner. Yet another

contention raised by the petitioner's counsel is that the first respondent,

https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.1817 of 2021

who is the contesting respondent/ first defendant in the suit has no

objection in appointing the Advocate Commissioner to inspect the suit

second schedule property. While so, the trial Court dismissed the

application on a total misconception of facts. Hence, the order of the

trial Court is liable to be setaside.

4.In response, Mr.S.Selva Aditya, learned counsel

appearing for the first respondent submits that the trial Court has

rightly dismissed the application filed by the petitioner/plaintiff,

seeking appointment of Advocate Commissioner, since the

petitioner/plaintiff attempted to prove his possession of the suit second

schedule property by way of a Commissioner's report. To substantiate

his contention, the learned counsel has relied upon the judgment of this

Court, in K.M.A.Wahab and 5 others Vs. Eswaran and another,

reported in 2008 (3) CTC 597, wherein, it was held as follows:-

https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.1817 of 2021

“6.This Court has carefully considered the arguments put forth on either side. Order 26 Rule 9 of CPC states as follows:-

''9.Commissions to make local investigations.- In any Suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made Rules as to the persons to whom such commission shall be issued, the Court shall be bound by such Rules.'' It is evident from the abovesaid provision of law that a Court may appoint a Commissioner in any Suit where it deems a local investigation to be requisite for the purpose of elucidating any matter in dispute. It is necessary to point out in the affidavit filed in support

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of I.A.No.697 of 2006, it is stated by the respondent therein that he is alone in possession by cultivating the suit property and only to seek to find out the factum of possession, he sought for appointment of the Advocate Commissioner under the pretext of taking of the physical features indirectly. Such reasons ought to have been rejected by the Trial Court as untenable. As far as the factum of possession is concerned, the Court alone gather evidence through the parties and it cannot entrust the said matter to the Advocate- Commissioner to collect the evidence. As held in the judgment reported in Jabeen Taj V.M.Parveen Banu, 2005(3) MLJ 24, inasmuch as there is no dispute with regard to the identity of the property, the trial Court has no reason to appoint the Advocate Commissioner. Similarly, in the other judgment reported in Chandrasekaran and 6 others V.V.Doss Naidu, 2006(2) LW 159, it is held that through remuneration is paid by the party, who sought for appointment of the Advocate Commissioner, as such no prejudice will be caused to the other side, is not at all relevant factor for appointment of the Advocate Commissioner.”

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5.This Court considered the rival submissions made and

also perused the materials placed on record.

6.The petitioner has filed a suit in O.S.No.70 of 2020,

before the District Munsif Court, Thoothukudi, for declaration

declaring that the suit second schedule property is a common pathway

and also for permanent injunction. He also taken out an Interlocutory

Application in I.A.No.1 of 2020, for appointment of Advocate

Commissioner that the suit second schedule property is in his

possession. It is the main contention of the petitioner that the defendant

is attempted to encroach upon the pathway and also attempted to

construct a compound wall in the subject property. During the course

of arguments, the learned counsel appearing for the first

respondent/first defendant submits that the averment of the petitioner is

false and there is no attempt on the part of the first respondent/first

defendant for constructing any compound wall in the suit second

https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.1817 of 2021

schedule property. The learned counsel further submits that he is not at

all inclined to put up any construction, pending suit, provided, if the

plaintiff/petitioner will co-operate for early disposal of the suit within a

reasonable time.

7.In reply, the learned counsel appearing for the petitioner

also consented to co-operate for early disposal of the suit.

8.Recording the said submission of the learned counsel

appearing for the first respondent/first defendant that there is no

compound wall in the suit second schedule property and also there is

no inclination on the part of the first respondent/first defendant to put

up any construction in the subject property, pending the suit and

considering his intention for early disposal of the suit within a

reasonable time and also taking into consideration the fact that the

learned counsel appearing for the petitioner also consented for the

same, this Civil Revision Petition is dismissed with a direction to the

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trial Court to dispose of the suit as expeditiously as possible, preferably

within a period of eight months from the date of receipt of a copy of

this order. No costs. Consequently, connected Miscellaneous Petition is

closed.

14.06.2022 Index : Yes / No. Internet : Yes / No. vrn

To

The District Munsif Court, Thoothukudi

https://www.mhc.tn.gov.in/judis CRP(PD)(MD)No.1817 of 2021

B.PUGALENDHI, J.

vrn

Order made in CRP(PD)(MD)No.1817 of 2021

14.06.2022

https://www.mhc.tn.gov.in/judis