Madras High Court
Devaasirvatham vs Vethamuthu on 31 March, 2023
C.R.P(MD)No.896 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.896 of 2023
and
C.M.P(MD) No.4124 of 2023
1.Devaasirvatham
2.Suganthi ...Petitioners/ Petitioners/
Defendants
Vs.
Vethamuthu ...Respondent/ Respondent
Plaintiff
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order dated
14.10.2022 made in I.A.No: 182 of 2022 in O.S.No. 43 of 2016 on the
file of the District Munsif Court Paramakudi.
For Petitioners : Mr.D.Senthil
ORDER
The present Civil Revision Petition has been filed against the fair
and decreetal order, dated 14.10.2022 made in I.A.No: 182 of 2022 in
O.S.No. 43 of 2016 on the file of the District Munsif Court Paramakudi.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.896 of 2023
2. The petitioners are the defendants in O.S.No.43 of 2016 filed by
the respondent before the District Munsif Court, Paramakudi. The said
suit was allowed by the Trial Court earlier by its judgment and decree,
dated 25.11.2018. The relevant portion of the judgment and decree reads
as under:
"1. ,e;j tof;F gFjpahf fPo;fz;lthW
mDkjpf;fg;gLfpwJ.
2. eP.k.rh.M.3y;> X, X1, X2, X3, X4, F, C, D vd kid
vz.13y; Fwpg;gpl;L fhl;bAs;s gFjp thjpf;F
ghj;jpakhdJ vd tpsk;Gif nra;Jk;> Nkw;gb nrhj;J
nghWj;J thjpapd; mDgtj;jpy; jilapilQ;ry; nra;af;
$lhJ vd gpujpthjpfSf;F vjpuhf epue;ju
cWj;Jf;fl;lis gpwg;gpj;Jk; jPh;g;gspf;fg;gLfpwJ.
3. eP.k.rh.M.3y;> E, X, X1, X2, X3, X4 vd kid vz.
13y; Fwpg;gpl;L fhl;bAs;s gFjp nghWj;J tof;F
js;Sgb nra;ag;gLfpwJ.
4. thjp NfhhpAs;s nraYWj;Jf;fl;lis ghpfhuk;
nghWj;J tof;F js;Sgb nra;ag;gLfpwJ.
5. eP.kh.rh.M.3 jPhg; ;ghizapd; Xh; mq;fkhdjhFk;.
6. jug;gpdh;fs; mtuth;fs; nryTj; njhifia
mtuth;fNs Vw;Wf;nfhs;s cj;jutplg;gLfpwJ."
3. Aggrieved by the same, A.S.No.33 of 2019 was filed before the
Sub Court, Paramakudi. The case was remitted back with certain
direction. After the case was remitted back, the petitioner herein filed
I.A.No.182 of 2022 under Order 6 Rule 9 of C.P.C to appoint an
Advocate Commissioner. The relevant portion of the impugned order
rejecting the request of the petitioner for appointing an Advocate
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.896 of 2023
Commissioner under Order 26 Rule 9 of C.P.C. reads as under:
"5. Point for consideration:-
Whether earlier advocate to be appointed as
commissioner to inspect the suit property and note down
physical features with the aid of FMB as prayed for the
petitioners?
a. It is the case of petitioner that writers Inspecting the
suit property with FMB measurements this suit cannot be
decided. Hence, to note down present physical feature and
adjacent lands with surveyor advocate commissioner in be
appointed.
b. The case of the respondent, who is plaintiff in the
suit, is that in order to drag on the suit this petition is filed
and already advocate commissioner report in detail has been
filed and that also not objected by the petitioners. In the AS
No 33/2019 there is no direction to obtain new advocate
commissioner report.
C. Considering petition and counter averments and
submissions of both side, this court finds that the main suit is
remanded back for fresh trial in respect of portion mentioned
as X,X1,X2,X3,X4 in EFCD in earlier advocate commissioner
report after amending plaint for mandatory injunction. The
first appellant court remanded the suit based upon earlier
commissioner report. It is seen that the petitioner did not
raise any objection as stated in this petition before trial or
first appellant court. Now the petitioner cannot ask for new
plea for appointing advocate commissioner to measure the
property with FMB measurements.
d. The prayer of appointing earlier advocate
commissioner, for the reasons stated in the petition, is first
time raised in this case that too after first appellant court
remanded the suit. Further in the first appeal judgment no
remark of mistake or incomplete in earlier advocate
commissioner report and plan are mentioned. The reason
stated by the petitioner for appointing Commissioner is not
satisfactory.
6. In the result, for the above said reasons, this petition
is dismissed. No costs."
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C.R.P(MD)No.896 of 2023
4. The present Civil Revision Petition has been filed challenging
the same.
5. It is submitted that the Commissioner was appointed and the
petitioner had also given a report at the original stage before the suit was
disposed of earlier by its judgment and decree, dated 25.11.2018. It is
submitted that the petitioner had also filed his objections and the trial
Court had partly allowed and partly rejected the claim of the respondent.
It is submitted that in view of the dispute between the parties, it was just
a necessary that Advocate Commissioner was required to be appointed.
6. I perused the impugned order and perused the judgment and
decree of the trial Court and that of the appeal remanding the case based
on the Advocate Commissioner report.
7. In my view, there is no merit in the civil revision petition. It is
open for the petitioner to question the creditability of the Advocate
Commissioner’s report which was given earlier.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.896 of 2023
8. Therefore, the present Civil Revision Petition stands dismissed
by directing the District Munsif Court, Paramakudi to dispose of the suit
pursuant to the remanding order as expeditiously as possible preferably
within a period of 9 months from the date of receipt of copy of this order.
No costs. Consequently, connected miscellaneous petition is closed.
31.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
To
1.The District Munsif Court Paramakudi.
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.896 of 2023
C.SARAVANAN,J.
SN
C.R.P(MD)No.896 of 2023
31.03.2023
https://www.mhc.tn.gov.in/judis
