Madras High Court
P.Veluchamy vs V.Nataraj Gounder on 14 June, 2023
C.R.P(MD)No.282 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.06.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.282 of 2023
and
C.M.P.(MD)No.1347 of 2023
P.Veluchamy
...Petitioner/Petitioner/Appellant/2nd Defendant
Vs.
1.V.Nataraj Gounder
...1st Respondent/1st Respondent/1st Respondent/Plaintiff
2.Valliammal
...Respondent/2nd Respondent/2nd Respondent/1st Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the order dated 14.11.2022 passed by
the Additional Sub Court, Palani in I.A.No.20 of 2022 in A.S.No.44 of
2016.
For Petitioner : Mr.T.Lenin Kumar
ORDER
This petition has been filed to set aside the order passed in I.A.No.
20 of 2022 in A.S.No.44 of 2016 dated 14.11.2022, on the file of the
Additional Sub Court, Palani.
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C.R.P(MD)No.282 of 2023
2.The petitioner herein is the second defendant in O.S.No.55 of
2009 before the District Munsif Court, Palani. The suit was filed by the
first respondent herein for a permanent injunction against the petitioner
and the second respondent herein, who was arrayed as the first defendant
in the suit. The suit was decreed as prayed for by the first respondent
herein on 21.01.2015.
3.Aggrieved by the judgment and decree of the District Munsif
Court, Palani in O.S.No.55 of 2009 filed by the first respondent herein,
the petitioner preferred an appeal before the Additional Sub Court, Palani
in A.S.No.44 of 2016. In the said appeal, the petitioner filed I.A.No.20 of
2022 for appointment of an Advocate Commissioner under Order 26
Rule 9 of CPC to inspect the suit schedule property and to verify the
boundary and to file report along with the plan.
4.It is the specific case of the petitioner that in the suit schedule
property, the petitioner had dug up two bore wells and was utilising the
water from the bore well for irrigating his agriculture land. It is the
further case of the petitioner that as many as 350 coconut trees were
planted and corn were also cultivated by the petitioner which the first
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C.R.P(MD)No.282 of 2023
respondent was attempting to destroy. That apart, it is submitted that the
boundary dispute between the petitioner and the first respondent herein.
It is submitted that the appellate Court namely, Additional Sub Court,
Palani has dismissed I.A.No.20 of 2022 without application of mind. The
Additional Sub Court, Palani has dismissed the application with the
following observations:
“11. At this juncture the learned counsel for the
first respondent argued that Advocate/Commissioner
cannot be appointed for collection of evidence and in
support of his contention he has brought to the notice of
this court the decision of our Hon'ble High Court
reported in 2002 (3) CTC 20 and (2009) 1 MLJ 516
wherein it is held that it is not the aim of Order 26 Rule
9 of CPC to assist a litigant to collect evidence where
the litigant can get evidence himself and it cannot be
entrusted to the Advocate/Commissioner and that when
there is no dispute regarding identity of the property
commissioner cannot be appointed. As rightly pointed
out by the learned counsel here in this case also there is
no dispute between the parties regarding the identity
and lie and location of the suit property. The dispute is
only with regard to the title and possession of the suit
property. Further as already stated the trial court has
arrived at a finding regarding title and possession of the
suit property and passed a judgment and decree on
merits. The petitioner has preferred the above appeal
only against the judgment and decree passed by the trial
court. So at this stage the petitioner is not entitled for
appointment of Advocate/Commissioner to note down
the physical features and to note down the crops in the
properties and to note down the borewell, motor, well
and the irrigation with four boundaries in the property.
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C.R.P(MD)No.282 of 2023
Hence this court is of the view the above citations
referred by the learned counsel for the 1st respondent is
squarely applicable to the facts and circumstances of
this case.
12. Further it is seen that the petitioner has not
taken any steps for appointment of
Advocate/Commissioner before the trial court. He has
filed the present petition for appointment of
Advocate/Commissioner in this appeal only, that too
after a period of five years after filing of the appeal. He
has not furnished any reason as to why he has not filed
any such petition for appointment of commissioner
before the trial court. Hence this court is of the view that
the contention of the 1st respondent that this petition is
filed only to drag on the proceedings does merit
acceptance.
13. Hence considering the above facts and
circumstances of this case this Court is of the view that
the above petition is devoid of merits and hence the
same deserves to be dismissed.
14. In the result this petition is dismissed. No costs.”
5.I have considered the arguments advanced by the learned
counsel for the petitioner.
6.The case of the petitioner appears to be the land in Survey Nos.
62/1, 62/2, 62/2A and 62/3 originally belonged to the second respondent
herein (first defendant in O.S.No.55 of 2009) and that together with three
cents of land in Survey No.62/1 was sold by the second respondent to the
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C.R.P(MD)No.282 of 2023
petitioner.
7.The learned counsel for the petitioner also drawn attention of
this Court to the averments in the plaint wherein the first respondent has
alleged and admitted that an extent of 3 cents of land in Survey No.62/1
was sold by the second respondent to the petitioner fraudulantly.
8.Thus it emerges that there is no dispute regarding the existence
of bore wells. Therefore, the necessity for appointing an Advocate
Commissioner to inspect the property and to give a report is not
warranted. Therefore, the impugned order rejecting the application filed
by the petitioner for appointment of Advocate Commissioner in the
appellate stage in the appeal filed by the petitioner in A.S.No.44 of 2016
does not call for any interference.
9.Therefore, this Civil Revision Petition is liable to be dismissed.
It is accordingly, dismissed. Considering the fact that the dispute is of the
year 2009, the trial Court is directed to dispose of the appeal as
expeditious as possible preferably within a period of six months from the
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C.R.P(MD)No.282 of 2023
C.SARAVANAN,J.
Mrn
date of receipt of copy of this order. No costs. Consequently, the connected
miscellaneous petition is closed.
14.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Mrn
To
1.The Additional Sub Judge, Palani.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
C.R.P(MD)No.282 of 2023
14.06.2023
https://www.mhc.tn.gov.in/judis
