Madras High Court
Maranadu vs Madasamy on 11 April, 2023
C.R.P(MD)No.2592 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.2592 of 2022
and
C.M.P(MD)No.12710 of 2022
1.Maranadu
2.Mohan ... Petitioners/Respondents/
Plaintiffs
Vs.
Madasamy ...Respondent/Petitioner/
1st Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to call for the records and set aside the fair and
decreetal order, dated 21.11.2022 passed in I.A.No.251 of 2022 in
O.S.NO.29 of 2019 on the file of the Learned Sub Judge, Melur.
For Petitioners : Mr.K.Jeyamohan
For Respondent : Mr.H.Arumugam
ORDER
The petitioner has filed the present Civil Revision Petition against
the order, dated 21.11.2022 passed by the Sub Judge, Melur in I.A.No.
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C.R.P(MD)No.2592 of 2022
251 of 2020 in O.S.No.29 of 2019. The suit has been filed by the
petitioner with the following relief:
"m) tof;fpil nrhj;J ,e;eph; thjpfSf;F kl;Lk;
ghj;jpag;gl;lJ vd tpsk;Gif nra;Jk;
mjDld; ,ize;j epue;ju cWj;Jf;fl;lis ghpfhuk;
toq;fpAk;
M) tof;fpil nrhj;jpid nghWj;J ,e;eph; 1k;
gpujpthjp kw;Wk; 5k; gpujpthjpfshy; $l;lhf> Nghypahf>
Nkhrbahf fle;j 25.06.2010k; Njjpapl;L kJiu
jy;yhFsk; rhh;gjptfk; Gj;jfk; vz;.1y; cw;gj;jp
nra;Js;s Mtz vz;.2338/2010 fpiuagj;jpuk; rl;lg;gb
nry;yj;jf;f vd tpsk;Gif nra;Jk;>
,) 9k;> 10k; gpujpthjp fl;Lg;ghl;by; cs;s 54
nrl;bf;Fsk; fpuhkk;> tUtha;Jiw Mtzj;jpy; rh;Nt
vz;.13/3C-y; ,e;eph; thjpfs; ngahpid Nrh;f;fTk; 13/3C-
nkhj;j msT 1 Vf;fh; 30 nrz;L vd jpUj;jk; nra;Jk;
rh;Nt vz;.13/3C-y; cl;gphpT vz;.13/3D ia ePf;fk; nra;J
jf;f cj;juT gpwg;gpj;Jk;>
<) ,e;eph; gpujpthjpfs; thjpfSf;F ,t;tof;fpd;
nryT njhifapid toq;fNtz;Lk; vd cj;juT
gpwg;gpj;Jk;>
c) NkYk; ,t;tof;fpd; jd;id> fUjp ,e;ePjpkd;wk;
thjpfSf;F rhjkhf ,d;Dk; vd;ndd;d ghpfhuq;fs;
juNtz;Lnkd fUJfpd;wNjh mit midj;ijAk; je;J
jPh;gG
; k; jPh;g;ghizAk; gpwg;gpf;f Ntz;Lkha; gzpTld;
gpuhh;j;jpf;fg;gLfpwJ."
2. It is the case of the petitioner that the Court is erred in passing
an impugned order for appointing an Advocate Commissioner under
Order 26 Rule 9 of C.P.C as it is not a fit case for appointing an
Advocate Commissioner. It is submitted that the respondent/defendant
was claiming ownership over the property based on bogus/forged sale
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C.R.P(MD)No.2592 of 2022
deed, dated 25.06.2010 and preliminary proceedings are also pending
against the vendor of the respondent. It is further submitted that the
vendor of the respondent has also distant herself from the sale deed for
which the defendants are claiming title over the property.
3. The impugned order is defended by the respondent/defendant on
whose instance impugned order, dated 21.11.2022 was passed in I.A.No.
251 of 2020 in O.S.No.29 of 2019. It is submitted that the impugned
order is well reasoned and requires no interference. That apart, it is
submitted that the petitioner’s father purchased the property on
12.08.1973 in composite S.No.13/3 to an extent of 1.31 acres out of 5.50
acres. However, the petitioner’s father, namely, late.Ayyadurai, who
curiously obtained a patta for 1.92 acres and therefore, the attempt of the
petitioner was to state that the 81 ½ cents of land purchased by the
respondent on 25.06.2010 was bogus.
4. I have considered the arguments advanced by the learned
counsel for the petitioners and the learned counsel for the respondent and
perused the impugned order, dated 21.11.2022. The relevant portion of
the impugned order reads as under:
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C.R.P(MD)No.2592 of 2022
"17. Now the case is at this stage of defendant's side
evidence in OS No.29/2019. Already, the plaintiffs has
examined PWI. ExAL to Ex.A.35 have been marked. Hence
the suit is at the stage of part heard and the petitioner herein
has to get into witness box to let in evidence. At this stage
this petition has been filed.
18. The important point to be decided is, whether the
property comprised in the suit schedule of property is the
same property as purchased by the defendant in this suit or
not.
19. At this juncture, the suit is deemed to have been
still open and the controversies in respect of the suit
property could have been settled only by the way of
appointment of commissioner.
20. So in order to remove the cloud of doubts cast
upon the identification of suit properties and the purchased
portion of the defendant along with the description of
property, the appointment of advocate commission will be
right one at this stage.
21. Because the PW2. V.A.O. categorically admitted
that Gy vz;. 13/3C-y; fl;Lg;gl;l 81-1/2 nrz;il
$l;bdhYk;> nkhj;j fpiuar;nrhj;jpw;F
tp];jPh;zf;Fiwthf cs;sJ. ,J rk;ge;jkhf thjp
FWf;F tprhuizapd;NghJ Fiwthd tp];jPh;zk; ve;j
rh;Nt vz;zpy; cs;sJ vd;gJ Fwpj;J njhpatpy;iy
vd njhptpj;Js;shh;.
22. Merc appointing the commission will not serve the
purpose. So that the separate plan and report for the S.No.
13/3C and S.No. S.No. 13/D and S.No.13/3 and as per the
relevant documents. Also to find out extent of the 13/3 is 5
acre 50 cents.
23. Though the plaintiff contended that the
commission petition will not help to find out the fraudulent
sale deeds as the suit can be decided based upon the
documents.
24. Where upon the defendant contended that before
UDR itself, in S.No.13/3 has been sub divided in 13/A,B,C.D.
The same was admitted by plaintiff. While so. the difference
of extent has to be found out from the boundaries and extent
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C.R.P(MD)No.2592 of 2022
also. Therefore, the appointment of commission at this stage
is for the interest of the justice in rendering the findings for
the just decision of this case.
25. Only, After finding that which boundary belonged
to which survey number, then only the correct fact and law
relating to the suit properties which is raised at the evidence
and argument can be applied for just decision. Therefore
appointment of advocate commission at the defense stage
will help to minimize oral evidence and the surmises and
conjuctures in the suits and evidence. Depending on facts
and circumstances of the case, the discretion of court must
be exercised for the purpose of elucidating facts in respect of
any matter in dispute wherethe circumstances render it
expedient in the interest of justice to do so. Hence, the power
of court is discretionary in nature, to appoint Commissioner
for the purpose of ascertaining, certain facts, to make it
clear intelligible and to throw light upon thematter in issue,
relating to the main case as well as the facts leading to the
dispute.
26. In the aforesaid circumstances, the appointment of
commissioner should be opted since the location of the
properties in the schedule of property with reference to the
title deed dated 25.06.2010 of the defendant Madasamy
could be verified by the commissioner with the help of
surveyor alone.
27. Therefore, the extent of the property as per the sale
deed dated 14.06.2000 with reference to the suit property
will be just and necessary to elucidate the relevant aspects.
Hence the petition deserves merits.
28. As discussed earlier and arrived at the conclusions
the above findings is hereby compounded and verdicted as
follows
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C.R.P(MD)No.2592 of 2022
29. In the result, the petition is hereby allowed with
above observations. No costs.
30. In fine Mr.G. Vivek, Advocate is hereby appointed
as an advocate commissioner to inspect the suit property by
giving notice to both the parties in advance and to measure
the S.No.13/3C with reference to the Property in description
in Sale deed dated 25.06.2010 of the defendant with help of
the surveyor and file with separate and individual plan and
report drawn to scale correlating the same for the S.Nos.
13/3 and it sub divisions with extent with clear
demonstrations with any overlapping if any in separate
colour. The commissioner remuneration is fixed as Rs.7000/-
to be paid directly by the petitioner defendant. The
commission is returnable by 12.12.2022."
5. A reading of the impugned order indicates that the descretion
has been wrongly exercised by the learned Sub Judge, Melur while
passing the impugned order on 21.11.2022 in I.A.No.251 of 2020 in
O.S.No.29 of 2019 after the trial commenced. The application has been
filed on 20.11.2019 after the plaintiff’s witness was examined and
Exhibits A1 to A35 were marked.
6. In view of the above, the impugned order is set aside. The
Learned Sub Court, Melur is directed to conclude the trial and pass
judgment and decree as expeditiously as possible based on the available
evidence preferably within a period of 6 months from the date of receipt
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C.R.P(MD)No.2592 of 2022
of copy of this order.
7. The present Civil Revision Petition stands allowed with the
above observations. No costs. Consequently, connected miscellaneous
petition is closed.
11.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
To
1.The Sub Judge, Melur.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2592 of 2022
C.SARAVANAN,J.
SN
C.R.P(MD)No.2592 of 2022
11.04.2023
https://www.mhc.tn.gov.in/judis
