Avudaithai vs Periya Gurusamy Naicker
2023 Latest Caselaw 15385 Mad

Madras High Court

Avudaithai vs Periya Gurusamy Naicker on 30 November, 2023

    2023/MHC/5515




                                                                       C.R.P.(MD)No.1611 of 2017

                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Dated: 30.11.2023

                                                      CORAM

                                  THE HON'BLE MR. JUSTICE P.B.BALAJI

                                            C.R.P.(MD)No.1611 of 2017
                                                       and
                                            C.M.P.(MD)No.9106 of 2017
                       Avudaithai                             ... Petitioner / Petitioner /
                                                                Petitioner/Plaintiff
                                                      V.
                       1.Periya Gurusamy Naicker
                       2.Kanthasamy Naicket
                       3.Rengasamy Naicket @ Chinnaraj ... Respondents / Respondents
                                                                 Respondents/ Defendants


                       Prayer: Civil Revision Petition filed under Article 227 of the
                       Constitution of India, against the fair and decretal order dated
                       16.02.2017 passed in I.A.No.86 of 2016 in I.A.No.1165 of 2012 in
                       O.S.No.154 of 2011, on the file of the District Munsif Court, Kovilpatti,
                       Thoothukudi District.

                                  For Petitioner      : Mr.R.J.Karthick

                                  For Respondents     : Mr.R.Devaraj for R2 & R3




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                                                                       C.R.P.(MD)No.1611 of 2017




                                                      ORDER

The plaintiff, aggrieved by the dismissal of I.A.No.86 of 2016

taken out by him, seeking to permit cross examination of the Advocate

Commissioner and the Surveyor, who had filed a report before the

Court, is the revision petitioner.

2. The suit is one for declaration based on easementry right

claimed by the plaintiff in the suit and also for mandatory injunction to

remove certain objectionable constructions that are blocking the 2nd

schedule property, pending the suit. An advocate commissioner was

admittedly appointed and consequently, the said report of the

Commissioner was scraped and thereafter another Commissioner was

appointed in I.A.No.1165 of 2012. The second Advocate Commissioner

took the assistance of the Surveyor and filed a report along with the

sketch provided by the Surveyor. The revision petitioner has filed his

objection to the said report which includes a Surveyor's plan. It is the

grievance of the revision petitioner that his objections have not been

dealt with and thereafter alone he took out an application in I.A.No.

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1165 of 2012 to establish his objections, by seeking to cross examine

the Advocate Commissioner and the Surveyor.

3. The said application was resisted by the respondents /

defendants. The trial Court dismissed the said application finding that

it was only an attempt to drag on the proceedings and that the

application was premature and pending trial, if there was any necessity

to examine the Commissioner, the plaintiff has always to avail of such

opportunity.

4. Aggrieved by the said order of the trial Court, the plaintiff

has preferred the present revision on the grounds that the order of the

trial Court is passed directly in violation of the ratio laid down by this

Court in Vemba Gounder V. Pooncholai Goundar reported in

AIR-1996-Madras-347.

5. I have heard Mr.R.J.Karthick, learned counsel for the

revision petitioner and Mr.R.Devaraj, learned counsel for the

respondents 2 and 3. I have also perused the records.

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6. Admittedly, the suit is one for declaration, which is claimed

on the basis of the easementry rights that was acquired by the plaintiff

and consequently for mandatory injunction and other reliefs. There is no

dispute that the first advocate commissioner's report was scraped and

thereafter the present advocate commissioner visited the suit property

and filed a report. It is also an admitted position that the plaintiff,

aggrieved by the some of the findings rendered by the Advocate

Commissioner filed his objections as well and thereafter the present

application in I.A.No.86 of 2016, seeking to cross examine the advocate

commissioner and the surveyor.

7. This Court, in Vemba Gounder's case has elaborately dealt

with the proper approach to be adopted by the Court, in all such cases

of appointment of Advocate Commissioners and their reports. The

relevant portion of the judgment of this Court in Vemba Gounder's case

is as follows:

“30. The petitioner has filed objections to the report. According to him, even the suit property is not identified by the

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Commissioner and he has simply copied a survey plan with the help of a surveyor. If that be so, the petitioner should have taken steps to examine the Commissioner or let in evidence to satisfy the Court below that the report is faulty and the same should be scrapped and the same Commissioner should be directed to file another report or a fresh Commission should be issued, with a direction to locate the property as sought for in the application. No such attempt was made by the petitioner. Even though objections were filed in the year 1994, till the dismissal of the present application, the petitioner did not take any steps in this regard. He could have moved the Court below to enter a finding regarding the acceptability or otherwise of the report. I am sure, if such an attempt had been made by the petitioner, the Court below would have rendered a finding on the Report already filed by the Advocate-Commissioner. 1 have already said that when objection is raised on a Report it is the duty of the dial Court to enter a finding regarding the same before asking the parties to let in evidence on the merits of the case. For the purpose of

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substantiating their Objections to the Report, probably examination of the Commissioner alone may not be sufficient. Parties may also have to be examined. Only after taking such steps and after arguments, when the Court enters a finding on the Report already filed, if he is aggrieved by the finding, the petitioner can insist upon issuing a second Commission or remit the warrant to the same Commissioner, for curing the defects made mention of in the Objections. Merely accusing the trial Court of not following the procedure is not proper.”

8. This Court has laid down the steps in connection with

examination of an advocate commissioner, as also issuance of a fresh

Commissioner. As seen from the said decision, the trial Court has to

render a finding regarding the objections raised on the Commissioner's

report, before permitting the parties to let in evidence on the merits of

the case. It is exactly the very same exercise that the plaintiff wanted to

avail of before the trial Court. Unfortunately, the trial Court has

dismissed the said application finding that it is only an attempt of

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gaining time and that the application is also premature. The plaintiff

approached Court seeking relief and therefore, it cannot be casually

said that the plaintiff wants to protract the proceedings. Admittedly, he

has been aggrieved by certain findings of the Advocate Commissioner

and thereafter, he diligently filed his objections to the Commissioner's

report also. Therefore, following the judgment of this Court in Vemba

Gounder's case, the trial Court ought to have offered an opportunity to

the plaintiff, who sought to cross examine the Advocate Commissioner

and the Surveyor and establish and prove his objections to the

Commissioner's report. A duty is cast upon the trial Court, to render a

finding on the said objections and only thereafter, the parties should be

called upon to lead evidence on the merits of the case. In view of the

said decision of this Court, I am unable to sustain the impugned order.

9. In fine,the Civil Revision Petition is allowed and the order

dated 16.02.2017 passed in I.A.No.86 of 2016 in I.A.No.1165 of 2012

in O.S.No.154 of 2011, on the file of the District Munsif, Kovilpatti,

Thoothukudi District, is hereby set aside. The trial Court shall permit

the plaintiff to cross examine the Advocate Commissioner as well as

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the Surveyor and if the defendants seeking such opportunity to cross

examine the advocate commissioner and the surveyor, permit the same

and thereafter, the trial Court has to arrive at findings with regard to the

objections to the Commissioner's report and thereafter proceed with the

suit in accordance with law.

10. Considering that the suit is of the year 2011, the trial

Court shall make every endeavour to dispose of the suit on or before

30.06.2024. There shall be no order as to cost. Consequently, connected

Miscellaneous Petition is closed.

30.11.2023 Internet : Yes Index:Yes/No Neutral Citation:Yes/No Ls

To

1.The District Munsif Court, Kovilpatti, Thoothukudi District.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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P.B.BALAJI.J.,

Ls

30.11.2023

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