Madras High Court
Periyasamy vs Ramani on 28 March, 2022
CRP.No.1398 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.03.2022
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
CRP No.1398 of 2017
and
CMP.No.6520 of 2017
Periyasamy ... Petitioner
Vs.
1.Ramani
2.T.K.Narayanan ... Respondents
Prayer: This civil revision petition has been filed under Article 227 of the
Constitution of India against the order and decreetal order dated 07.11.2016
made in I.A.No.271 of 2015 in O.S.No.63 of 2007 on the file of the
Additional District Munsif, Gudalur.
For Petitioner : Mr.T.M.Naveen
For Respondents : Mr.C.A.Diwakar
ORDER
The Civil Revision Petition has been filed against the order and
decreetal order dated 07.11.2016 made in I.A.No.271 of 2015 in O.S.No.63
of 2007 on the file of the Additional District Munsif, Gudalur.
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CRP.No.1398 of 2017
2.Plaintiff in O.S.No.63 of 2007 which is now pending on the file of
the District Munsif Court, Nilgiris at Gudalur is the revision petitioner
herein. The Plaintiff Mr.Periyasamy and the defendants Mrs.Ramani and her
husband T.K.Narayanan appear to have been involved in lis not only in
O.S.No.63 of 2007 and also in a subsequent suit in O.S.No.42 of 2008
which is pending on the file of the Sub-Court, The Nilgiris, at
Udhagamandalam, in which, the petitioner herein, Periayasamy was acting
as Power of Attorney Agent of the plaintiff in that particular suit.
3.The suit relates to a particular passage, which both the parties
claim.
4.The suit in O.S.No.63 of 2007 came to be filed owing to the fact
that the revision petitioner/plaintiff wanted to put up a compound wall in the
said passage and this was objected to by the respondents/defendants
necessitating institution of the suit seeking permanent injunction restraining
the defendants Mr.Ramani and her husband T.K.Narayanan from preventing
the revision petitioner/plaintiff putting up the said compound wall.
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CRP.No.1398 of 2017
5.Written statement was filed in the said suit and the parties were
invited to adduce evidence. On 30.06.2011, the learned District Munsif,
Gudalur, The Nilgiris, had delivered a judgement dismissing the suit.
Mr.Periyasamy had been examined as PW1 and one Nagaraj had been
examined as DW1. On the side of the plaintiff, Exs.A1 to A4 were marked.
6.Thereafter, the plaintiff/revision petitioner herein filed A.S.No.50
of 2011, which came up for consideration before the Sub Court, The Nilgiris
at Udhagamandalam and the learned Sub Judge, by judgment dated
09.03.2012 found that the issue of construction over the passage, required a
commissioner to be appointed for noting down the physical feature and also
to file a report and in the absence of such report, a proper judgment could
not have been delivered and therefore, exercising power under Order 41
Rule 23(A) of CPC, remanded the suit back for fresh disposal and had also
directed that it would only be in the interest of Court that an Advocate
Commissioner is appointed.
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CRP.No.1398 of 2017
7.Accordingly, I.A.No.516 of 2012 was filed by the revision
petitioner herein/plaintiff in the suit, after the suit had been remanded back
by the first Appellate Court for appointment of Advocate Commissioner.
8.The learned counsel for the revision petitioner pointed out the
warrant, which was issued to the Advocate Commissioner, and stated that
the task of the Advocate Commissioner surrounded Survey No.339/35 in
Gudalur Village. The warrant also stated that the Advocate Commissioner
should examine that particular survey number with the assistance of the
Taluk Surveyor and file a report.
9.The Advocate Commissioner actually filed a report. It is the
grievance of the learned counsel for the revision petitioner is that the
Advocate Commissioner had stated about R.S.No.339/15A1A1A and had
not examined. Survey No.339/35, which was mentioned in the warrant.
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CRP.No.1398 of 2017
10.Thereafter, objections were also filed to the report of the Advocate
Commissioner.
11.Thereafter, I.A.No.271 /15 came to be filed again by the petitioner
herein/plaintiff, seeking a direction to the Commissioner to reinspect the
suit schedule property and give a further report with respect to the issues
which were covered under warrant. A counter was filed by the respondent
herein. That application came to be dismissed by an order dated 07.11.2016
necessitating filing of the the present Revision Petition.
12.In the order, the learned Principal District Munsif cum Judicial
Magistrate, Gudalur, who was holding additional charge of the Additional
Munsif, Gudalur stated that the Advocate Commissioner had fixed four
boundaries and the boundary line between the petition property and the
pathway as directed in the warrant. It was stated that objections raised by
the revision petitioner were not valid and unsustainable under law. It was
therefore stated that there was no necessity to scrap the report of the
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CRP.No.1398 of 2017
Advocate Commissioner. The application was therefore dismissed. This
order is now challenged and is put in question in the present revision
petition.
13.Heard Mr.T.M.Naveen, learned counsel for the revision petitioner
and Mr.C.A.Diwakar, learned counsel for the respondents.
14.Even before I could examine the issues in the present suit,
Mr.T.M.Naveen drew the attention to the report of the Advocate
Commissioner, which had been filed in the other suit, which had mentioned
at the beginning of the order in O.S.No.42 of 2008. That particular suit had
travelled far. I informed that as on date, S.A.No.432 of 2012 is now pending
on the file of this Court. It is stated by Mr.T.M.Naveen, the learned counsel
for the petitioner that in that particular suit which also was with respect to
an allegation of encroachment by the respondents herein, with respect to
another portion of the same suit property, an Advocate Commissioner had
the benefit of visiting the property and filing a report in January, 2009. It is
urged by Mr.T.M.Naveen that the said report filed in January 2009 in
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CRP.No.1398 of 2017
O.S.No.42 of 2008, which suit was pending on the file of the Sub Court,
The Nilgiris at Udhagamandalam, should be called for by this Court. I
decline to do so. O.S.No.42 of 2008 is now consideration in S.A.No.432 of
2012 and it is the privilege of the learned Judge, who examines that
particular second appeal to examine the veracity and applicability of the
Advocate Commissioner's report filed in January 2009 in O.S.No.42 of
2008. In the absence of any material surrounding O.S.No.42 of 2008, it
would be in appropriate on the part of this Court to rely on that particular
report of the Advocate Commissioner.
15.It is thereafter stated by the learned counsel for the revision
petitioner that the Advocate Commissioner's warrant contained a particular
survey number and his report contained another survey number. If that be
the case, then to appreciate the fact whether the Advocate Commissioner
had actually visited the particular suit schedule property, where the
compound wall is being put up and which is the subject matter of O.S.No.63
of 2007, since a part of the wall had already been completed, it would only
be appropriate that the parties issue summons to the Advocate
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CRP.No.1398 of 2017
Commissioner to graze the witness box and if they are so advised, examine
him with respect to the actual place or places which he visited, which he
measured and for which, he gave a report.
16.On the basis of the evidence of the Advocate Commissioner, if the
property is identifiable or not identifiable, the learned District Munsif may
take an appropriate decision. Moreover, without the earlier report being
scraped, a further commission cannot be issued either to the same
commissioner or to a fresh commissioner. To determine whether the report
has to be scrapped or retained, evidence is required. It can be adduced by
issuing summons to the Commissioner and he has to substantiate the report
which he filed. It is the prerogative and privilege of the District Munsif to
so examine and it is not for this Court to give any finding of view on that
particular aspect.
17.For the above reasons, the revision petition is dismissed, but, the
parties re directed to go back to the trial Court. If at all the report of the
Advocate Commissioner is to be scrapped, let it be done in the manner
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CRP.No.1398 of 2017
known to law and if advised, let the parties take a conscious decision to
scrap the same. Giving that particular liberty to either the petitioner herein
or to the respondent, the revision petition is dismissed. The trial Court has
to take up all the issues surrounding the report of the Advocate
Commissioner afresh.
18.I hope that the trial Court will bestow its attention and dispose of
the suit as early as possible. Even though the civil revision petition is
dimissed, I would still grant that particular liberty to the revision petitioner
herein to adduce evidence by summoning witness with respect to the report
and also particularly, the Commissioner if so advised. No costs.
Consequentially, connected miscellaneous petition is closed.
Index:Yes/No
Internet:Yes/No
sms 28.03.2022
To
The Additional District Munsif, Gudalur.
C.V.KARTHIKEYAN,J
https://www.mhc.tn.gov.in/judis
CRP.No.1398 of 2017
sms
CRP No.1398 of 2017
and
CMP.No.6520 of 2017
28.03.2022
https://www.mhc.tn.gov.in/judis
