Madras High Court
M.S.Mohamed Yusuf vs K.Alagarsamy on 31 March, 2023
C.R.P(MD)No.2590 of 2022
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.2590 of 2022
and
C.M.P(MD) No.12704 of 2022
1.M.S.Mohamed Yusuf
2. Fathima Kani ... Petitioners/ Petitioners/
Appellants
Vs.
K.Alagarsamy ... Respondent/ Respondent
Respondent
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the order in I.A.No.2 of 2022 in
A.S.No.3 of 2022, dated 08.11.2022 on the file of the Learned
Subordinate Judge, Mudukulathur.
For Petitioners : Mr.S.A.Ajmalkhan
For Respondent : Mr.C.Karthik
ORDER
The present Civil Revision Petition has been filed against the fair
and decreetal order, dated 08.11.2022 in I.A.No.2 of 2022 in A.S.No.3 of
2022 on the file of the Learned Subordinate Judge, Mudukulathur.
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C.R.P(MD)No.2590 of 2022
2. The petitioners are the unsuccessful defendants in O.S.No.35 of
2017 filed before the District Munsif Court, Mudukulathur. The said suit
has been filed by the respondent for a bare injunction which was
thereafter modified for a declaration and for a mandatory injunction for
recovery of possession.
3. The respondent appears to have purchased the suit schedule
property on 14.06.1964. It was the case of the respondent before the trial
Court that the petitioners have encroached an extent of 18 square feet of
land in S.No.60/50 measuring an extent of 5 cents in Mudukulathur by
the petitioners herein. In the said proceedings, the respondent had filed
I.A.No.2 of 2017 under Order 26 Rule 9 of C.P.C pursuant to which, an
Advocate Commissioner was appointed who visited the property on
11.11.2017 and filed a report to the trial Court on 27.11.2017 together
with a sketch. These documents have been taken on record by the trial
Court as Exhibit C1 and C2.
4. The suit was also decreed as prayed for against which the
petitioners have now filed an appeal before the Subordinate Judge,
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C.R.P(MD)No.2590 of 2022
Muthukulathur in A.S.No.3 of 2022. In the said appeal, the petitioner has
now in turn filed I.A.No.2 of 2022 for appointment of Advocate
Commissioner to examine the property and to give a fresh report. It
appears that the petitioners have earlier filed the similar application in
I.A.No.1 of 2022 which was however withdrawn on account of the
certain defects in the description of the property. It also appears that the
petitioners had also filed I.A.No.28 of 2021 before the trial Court to
make spot visit to inspect the property, which was also dismissed.
5. In this civil revision petition, the petitioner is aggrieved by the
impugned order rejecting the prayer of the petitioner to appoint an
Advocate Commissioner. It is submitted that the report was made in the
absence of the petitioner, though notice was served. That apart, it is
submitted that discrepancy in the description of the property as the suit
was originally field with only one schedule and thereafter, amended to
two schedules, where second schedule is a part of the first schedule. It is
submitted that the respondent has himself entered into the property of the
petitioners and therefore, it is a fit case for interfering with the order as
the order has wrongly rejected the request for appointment of Advocate
Commissioner.
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C.R.P(MD)No.2590 of 2022
6. The learned counsel for the petitioners has placed reliance on
the decision of this Court in the case of M.Ammasayappan and others
Vs Muthusamy (died) and others reported in 2017-3-L.W.521, wherein,
it has been held that fresh warrant can be issued without scrapping the
earlier report and would not any way affect parties.
7. On the other hand, the learned counsel for the respondent has
placed reliance on the following judgments:
1. Swami Premananda Bharathi Vs Swami Yogananda Bharathi
and others reported in AIR 1985 Kerala 83.
2. R.Sivasubramanian Vs S.Balamurugan reported in 2006 (2)
CTC 54.
3.Anna Sudha Devi Vs P.George Samuel reported in 2009 (2) CTC
8. He submits that the impugned order passed by the Court
rejecting the request for appointment of Advocate Commissioner cannot
be find fault. The Advocate Commissioner inspected the property on
11.11.2017. It is further submitted that the petitioner had also filed
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C.R.P(MD)No.2590 of 2022
I.A.No.28 of 2021 before the Trial Court which was dismissed. It is
further submitted that no objection was filed before the trial court and the
report was accepted. More importantly, it is stated that the Advocate
Commissioner was himself examined as D.W.2 and therefore, the re-
issuance of warrant at the appeal stage will not arise as the original report
remains stalled unless the report was scraped, fresh warrant for
appointing Advocate Commissioner does not arise.
9. I have considered the arguments advanced by the learned
counsel for the petitioners and the learned counsel for the respondent.
10. Though the suit has been filed by the respondent for
declaration and mandatory injunction and recovery of possession, the
appointment of Advocate Commissioner in the facts of the case did not
arise in the first instance. The trial Court ought not to have allowed
I.A.No.279 of 2017. However, the petitioner accepted the order passed in
I.A.No.279 of 2017 and the Advocate Commissioner has inspected the
said property on 11.11.2017 and has given a report on 27.11.2017 and
the trial Court marked as Exhibits C1 and C2. That apart, the petitioner
has also examined the Advocate Commissioner as witness on behalf of
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C.R.P(MD)No.2590 of 2022
the petitioner as D.W.2. The petitioner having participated in the trial
based on the report of the Advocate Commissioner, the attempt of the
petitioner is only to collect evidence by appointing an Advocate
Commissioner at the appellate stage.
11. Therefore, the present Civil Revision Petition is liable to be
dismissed. However, liberty is given to the petitioners to make
submissions questioning the report that was filed by the Advocate
Commissioner pursuant to the order in I.A.No.279 of 2017 before the
Sub Court, Mudukulathur. The Sub Court, Mudukulathur is directed to
dispose of the appeal on merits and in accordance with law as
expeditiously as possible preferably within a period of 12 months from
the date of receipt of copy of this order. Hence, the present Civil
Revision Petition stands dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
31.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
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C.R.P(MD)No.2590 of 2022
To
1.The learned Subordinate Judge,
Mudukulathur.
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.2590 of 2022
C.SARAVANAN,J.
SN
C.R.P(MD)No.2590 of 2022
31.03.2023
https://www.mhc.tn.gov.in/judis
