Madras High Court

R.M.Sankar vs C. Jaganathan on 22 December, 2023

Author: J. Sathya Narayana Prasad

Bench: J. Sathya Narayana Prasad

                                                               1                      C.R.P.(PD).No.1513 of 2021


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 22.12.2023

                                                          CORAM:

                      THE HON'BLE MR.JUSTICE J. SATHYA NARAYANA PRASAD

                                                 C.R.P.(PD).No.1513 of 2021
                                                 and CMP.No.11865 of 2021


                     R.M.Sankar                                                              ... Petitioner
                                                              Vs.

                     C. Jaganathan                                                       ... Respondent


                                  This Civil Revision Petition is filed under Article 227 of the
                     Constitution of India praying to set aside the fair and decreetal order
                     passed by the Principal District Court, Dharmapuri dated 17.04.2021 in
                     I.A.No.3 of 2021 in O.S.No.10 of 2018.


                                        For Petitioner    :         Mr.P.Valliyappan
                                                                    Senior Counsel for
                                                                    M/s.PV Law Associates

                                        For Respondent    :         Mr.M.Jothikumar

                                                         ORDER

The revision petition is filed challenging the fair and decreetal

order passed by the Principal District Court, Dharmapuri dated https://www.mhc.tn.gov.in/judis

17.04.2021 in I.A.No.3 of 2021 in O.S.No.10 of 2018 dismissing the

application filed by the defendant for appointment of an Advocate

Commissioner under Order 26 Rule 9 of the CPC.

2. The learned counsel for the petitioner submitted that the

application in I.A.No.3 of 2021 was filed for appointment of Advocate

Commissioner under Order 26 Rule 9 of CPC by the defendant for

appointment of Advocate Commissioner under Order 26 Rule 9 r/w

Section 151 of the CPC. The appointment of Advocate Commissioner is

necessary for the purpose of deciding the real dispute between the parties

and arrive at a just conclusion. He drew the attention of this Court to the

written statement filed by the defendant dated 22.03.2019 and the

relevant portion is extracted hereunder:-

6. cz;ik r';fjpfis thjp g{lfkhf kiwj;Jtpl;L tHf;fpw;fhf nkhroahd bgha; r';fjpfis n$hlid bra;J tHf;F jhf;fy;

bra;Js;shh;/ cz;ik r';fjpfs; ahbjdpy;. tHf;F mLf;F kho tzpf tshf Ie;J khof;fil fl;ol';fs; MFk;/ mJ jUkg[hp efhpy; gpujhd ikag;gFjpapy; bgd;dhfuk; bkapd; nuhl;oy; mike;Js;sJ/ tHf;F Mtzk; Vw;gl;l 2014k; Mz;ony rJuo xd;W :U/18.000-j;jpw;Fk; nky; re;ij kjpg;g[ bfhz;l kpft[k; kjpg;g[ila brhj;jhFk;/ mjpy; gpujpthjp 2013k; Mz;oy;jhd; Ie;J mLf;F khof; fl;olk; kl;Lk; https://www.mhc.tn.gov.in/judis

:U/40.00.000j;jpw;Fk; nky; brytHpj;j fl;lg;gl;lJ/ 8/ thjpaplk; gpujpthjp U:/10.00.000 fld; bgw;wjw;F bghWg;g[Wjp

Mtzkhf thjp vGjpf; bfhz;l Mtzk;jhd; 25/06/2014k; njjpapl;l

Mtzk; MFk;/ thjp tHf;F brhj;ij tpw;f gpujpthjpaplk; vg;bghJk;

tpiy fhl;oaJk; fpilahJ/ mjw;fhf tpiy ngrpaJk; fpilahJ/

vt;tpjkhd xg;ge;jKk; ,UtUf;Fk; ,ilna Vw;gltpy;iy/ thjp

gpujpthjpaplk; mth; bfhLj;j U:/10.00.000j;jpw;F 2017k; Mz;L khh;r;

khjk; tiu khjk; xd;Wf;F 100f;F U:/1/50 tPjk; TL;k tl;oj;bjhifahd

U:/15.000j;ij khjk; jtwhky; bryj;jp te;Js;shh;/ gpd;dpl;L thjp

gpujpthjpaplk; U:/100f;F khjk; xd;Wf;F U:/2/50 TLjyhf tl;o bfhLf;f

ntz;Lk; vd eph;ge;jk; bra;jikahy; gpujpthjp jdJ bjhHpypy; tUtha;

Fiwe;Jtpl;ljhy; mth; nfhhpa tl;oia brYj;j ,aytpy;iy/ gpujpthjp

tl;o brYj;j jtwpajhy; clnd thjp gpujpthjpapd; kPJ Fnuhjk;

bfhz;L mthplk; vGjp th';fp itj;Js;s Mtzj;ij itj;J nkw;go

tHf;if jhf;fy; bra;Js;shh;/

10/ thjpf;Fk; gpujpthjpf;Fk; ,ilna vt;tpj xg;ge;jKk; ,y;yhj

epiyapy; gzj;jpw;F Mjuthf thjp Vw;gLj;jpf;bfhz;L Mtzj;jpd;

mog;gilapy; mij epiwntw;w nfhhp jhf;fy; bra;Js;s tHf;F

vt;tifapYk; epiyf;fjf;fjy;y. 2014K; Mz;oy; Vw;gl;l tHf;F

Mtzj;jpd; mog;gilapy; thjp vg;nghJk; gpujpthjpaplk; mZfp

xg;ge;jj;ij epiwntw;w nfhhp nfl;ljpy;iy fhuzk; gzj;jpw;F

Mjuthf Vw;gLj;jpf;bfhz;l Mtzj;jpd; mog;gilapy; gpujpthjp

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

thjpaplk; khjk; jtwhky; K:d;W tUl';fSf;F nkyhf bjhlh;eJ ; tl;o

brYj;jp te;j fhuzj;jpdhy;jhd; thjp vt;tpj eltof;ifa[k;

vLf;fhky; ,Ue;Js;shh;/ xg;ge;jnk ,y;yhj epiyapdhy;jhd; thjp

tHf;F Mtzj;jpy; fz;l go mtuJ jug;g[ xg;ge;jj;ij epiwntw;w

vg;nghJk; tpUg;gj;JlDk;. Jahuhft[k; ,Ue;jjpy;iy/ mjdhy;jhd;

K:d;W tUl';fSf;F nkyhfpa[k; thjp vt;tpj eltof;ifa[k; vLf;fhky;

,Ue;Js;sJ Fwpg;gpljf;fJ/

3. There is no reply or rejoinder filed by the petitioner to the

written statement. In this case the proof affidavit was filed by PW1 on

16.03.2021. The learned Senior Counsel further submitted that the

appointment of Advocate Commissioner is filed only to note down the

physical features of the property as the petitioner has specifically pleaded

about the existence of 5 storied building and high value of the same and

the suit property is worth several crores. In this case the proof affidavit

was filed by PW1 on 16.03.2021.

4. In support of his contentions, he has placed reliance on certain

judgments of this Court as well as the Hon'ble Andhra Pradesh High

Court.

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

1. A. Zahir Hussain Vs Chandran and others [reported in

MANU/TN/8153/2022]

2. Maria Selvaraj Vs Mathias and others (CRP(PD)(MD).No.277

of 2008 decided on 16.12.2008)

3. Shaik Zareena Kasam Vs Patan Sadab Khan and others

(CRP.No.3266 of 2007 decided on 01.04.2011) [reported in

MANU/AP/0287/2011].

Hence the appointment of an Advocate Commissioner is necessary

and the order passed by the trial Court dated 17.04.2021 is liable to be

set aside and prays for allowing the civil revision petition.

5. Per contra, the learned counsel appearing for the respondent

submitted that on 25.06.2014 there was an registered sale agreement

between the plaintiff and the defendant and as per the above sale

agreement there is no 5 storied building as claimed or averred in the

affidavit filed in support of I.A.No.3 of 2021 and drew the attention of

this Court to paragraph No.2 of the affidavit and the same is extracted as

below:-

2/ nkw;go tHf;F vdJ jug;gpy; vjph;kDjhuh;-thjpia FWf;F tprhuiz bra;tjw;fhf tha;jh nghlg;gl;Ls;sJ Fwpj;J vdJ https://www.mhc.tn.gov.in/judis

tHf;fwph; vdf;Fj; jfty; bjhptpj;jpUe;jhh;/ ,d;W thjp jhf;fy; bra;jpUe;j gpukhz thf;FK:yj;ij goj;J ghh;j;njd;/ mjpy; tHf;F brhj;jpy; 5 kho fl;olk; cs;sJ Fwpj;J vdJ vjphpt[iuapy; brhy;ypa[s;sJ bgha; vd;W vjph;kDjhuh;-thjp jpl;ltl;lkhf Fwpg;gpl;Ls;shh;/ Mdhy; tHf;F brhj;jpy; 5 kho 2013 Mz;ony fl;lg;gl;lJ/ mjw;F tPlL ; thp tpjpg;g[k; Ie;J khof;Fk; jdpj;jdpna Vw;gl;Ls;sJ/ Ie;J khof;Fk; jdpj;jpdahd Ie;J kpd; ,izg;g[ cs;sJ/ Ms;Jis fpzW nkhl;lhUf;F jdp kpd; ,izg;g[ cs;sJ/ Ms;Jis fpzW nkhl;lhUf;F jdp kpd; ,izg;g[ Mf MW kpd; ,izg;g[ cs;sJ/ brhj;J thp. kpd; fl;lzk; ehsJ tiu ehd; brYj;jp tUfpnwd;/

6. He further submitted that originally exparte decree was passed

for three times against the petitioner and the petitioner has moved set

aside application and the same was allowed by the trial Court with costs

and at this stage the revision petitioner/defendant has filed the present

application belatedly only to drag on the proceedings in O.S.No.10 of

2018.

7. The learned counsel further submitted that no planning

permission, building permission or plan approval was submitted by the

revision petitioner/defendant till date in order to substantiate their

averments in the affidavit filed in support of I.A.No.3 of 2021 before the

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

trial Court or before this Court. In the plaint the description of property

details is same as mentioned in the sale agreement. The defendant filed a

written statement on 21.06.2019 in which the petitioner/defendant

admitted that the sale agreement has been made between the revision

petitioner and the respondent and he has not disputed the description of

the properties specifically. Earlier the revision petitioner/defendant was

set exparte on 04.02.2019 and the exparte evidence was taken on

25.02.2019 and the suit was disposed on 14.03.2019. Thereafter the

revision petitioner/defendant filed the restoration application under Order

(9) Rule 13 of CPC and the same was allowed on 21.06.2019. The

defendants were set exparte for the 2nd time on 19.08.2019 and the suit

was disposed on 10.02.2020 and again the suit was restored on

12.02.2021. The filing of application under Order 26 Rule 9 of the CPC

on 16.03.2021 to appoint an Advocate Commissioner and the

respondent/defendant has filed the counter affidavit stating that the Court

may issue summons to the Municipal Commissioner, Dharmapuri to

produce the relevant documents and approvals of the concerned building.

This Court at the time of admission of the civil revision petition on

02.08.2021 granted interim stay to proceed with the suit and the same

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

was vacated by this Court on 24.03.2023 and also recorded that the stage

of the suit was in evidence stage and directed the Principal District Court

to dispose of the suit at the earliest. Thereafter, the petitioner/defendant

was cross examined on 05.06.2023 and the plaintiff's side evidence was

closed on 09.08.2023. The revision petitioner/defendant filed proof

affidavit and Chief was taken and marked Ex.B1 to Ex.B8 and cross

examination was done partly on 09.10.2023 and on 07.11.2023. DW1

made the request before the trial Court and the matter was posted on

23.11.2023 for continuation of cross examination.

8. The learned counsel further submitted that the trial Court has

already answered that to determine the market value of the property, age

of the building is considered as collecting evidence. If the market value is

an issue the municipality is competent authority to decide the value. Even

assuming if there is any 5 storied building then it should have been

constructed in compliance with the municipalities, other relevant building

construction rules, regulations and laws etc., and no documents have

been filed to prove that there is 5 storied building is constructed by the

revision petitioner/defendant.

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

9. Heard both side and perused the materials available on record.

10. In the instant case, the suit in O.S.No.10 of 2018 was filed on

08.02.2018 and the written statement was filed on 22.03.2018 and

application I.A.No.3 of 2021 was filed on 16.03.2021 for appointment

of Advocate Commissioner which is after a delay of three years. The

main contention of the revision petitioner/defendant is that there is a five

storied building in the suit property and its value is several crores since

the same is centrally situated in main and busy area. While filing the

application for appointment of Advocate Commissioner the revision

petitioner/defendant has not filed any documentary proof to prove

that when the building was constructed, date of approval for

construction, planning permission, building permission and planning

permit which is essential for construction of a building whether it is a

single storied building or 5 storied building as per the Municipality,

Corporation rules and regulations whichever is applicable. This

Court vacated the interim order passed by this Court by order dated

24.03.2023 which was granted at the time of admission on 02.08.2021

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

and the relevant portion is extracted as below:-

8. Considering the facts, that the suit is pending for recording

evidence, the interim stay that was already granted at the admission

stage is vacated. The learned District Judge is directed to proceed with

the trial in the suit in O.S.No.10 of 2018 and dispose the same early.

This Civil Revision Petition is de-listed.

11. The trial Court dismissed the application filed by the revision

petitioner/defendant on 17.04.2021 and the relevant portion of the order

is extracted hereunder:-

“8”. Originally the exparte decree was passed for 3 times against the petitioner and the petitioner has moved with set aside applications and the same were allowed with costs and in this stage, this petition was filed, the petitioner has belated the proceedings by dragging on with these petitions. The suit is for specific performance and the petitioner is attempting to gather the evidence by appointing commissioner, which is not maintainable. Hence, the petitioner is not entitled for the relief as prayed for. The point is answered”.

12. At the time of final hearing of the case, this Court directed the

revision petitioner to file the relevant documents pertaining to the

construction/existence of 5 storied building as averred in the affidavit

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

filed in support of I.A.No.3 of 2021 for appointment of Advocate

Commissioner. The judgments relied upon by the learned Senior Counsel

for the petitioner is not applicable to the instant case on hand for the

reason that the appointment of the Advocate Commissioner is to

collect/gather the evidence. The learned Senior Counsel appearing for the

petitioner submitted that only the property tax receipt for the year 2013-

2014 is available and no other documentary proof is available with the

revision petitioner as on date. Hence the fair and decreetal order passed

by the trial Court dated 17.04.2021 has to be confirmed on the following

grounds:-

1. The application is filed belatedly after a delay of three years on

16.03.2021, whereas the suit was filed on 08.02.2018 and the

written statement was filed on 22.03.2018.

2. Written statement was filed on 22.03.2019 and the application for

appointment of Advocate Commissioner was filed belatedly after a

delay of two years.

3. The suit is in the trial stage and this Court vacated the interim

order on 05.04.2023 and directed the learned District Judge,

Dharmapuri to proceed with the trial which is the subject matter of

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

the suit in O.S.No.10 of 2018 and dispose of the same at the

earliest.