Madras High Court
Russel @ Russel Raj vs Ponmani on 15 April, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.04.2025
CORAM
THE HON'BLE MR. JUSTICE R.VIJAYAKUMAR
C.R.P.(PD)(MD)No.216 of 2025
and
C.M.P(MD)No.1336 of 2025
Russel @ Russel Raj ...Petitioner/Petitioner/Defendant
Vs.
Ponmani ...Respondent/Respondent/Plaintiff
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, to allow this Civil Revision Petition and set aside the impugned fair and
decreetal order passed by the learned Principal District Munsif, Nagercoil, dated
26.11.2024 in I.A.No.2 of 2024 in O.S.No.195 of 2000 and allow the
application as prayed for.
For Petitioner : Mr.N.Dilip Kumar
For Respondent : Mr.V.George Raja
*****
ORDER
The defendant in O.S.No.195 of 2000, on the file of the Principal District
Munsif Court, Nagercoil, has filed the present revision petition challenging the
dismissal of his application for scrapping a report of the Advocate
Commissioner.
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2.A perusal of the records reveal that the suit has been filed for the relief
of permanent injunction. The suit was dismissed by the trial Court. Challenging
the same, the plaintiff has filed A.S.No.128 of 2007, before the Principal Sub
Court, Nagercoil. The first appellate Court has confirmed the judgment and
decree of the trial Court. Challenging the same, the plaintiff has filed
S.A.(MD)No.915 of 2010. This Court by an order dated 28.04.2022, has set
aside the judgment and decree of the Courts below and remitted the matter back
to the trial Court. The trial Court was directed to appoint an Advocate
Commissioner to determine the lie and location of the property covered under
Ex.B2, Ex.B4, Ex.B5 and Ex.A13. The Advocate Commissioner was directed to
carry out the exercise of identification, lie and location and measurement with
reference to the survey and the revenue records.
3.Pursuant to the order of this Court, the trial Court has appointed an
Advocate Commissioner. Both the parties have submitted their documents and
memo of instructions to the Advocate Commissioner. The Advocate
Commissioner has submitted his report on 05.01.2024. The defendant has filed
I.A.No.2 of 2024, to scrap the Commissioner's report on the ground that the said
report reflects that the Commissioner is not in a position to identify the suit
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schedule property. The said application was dismissed by the trial Court.
Challenging the same, the present revision petition has been filed.
4.The learned Counsel appearing for the revision petitioner, relying upon
certain paragraphs in the Commissioner's report, has pointed out that the
Commissioner has expressed his inability to identify the lie and location of the
suit schedule property. In such circumstances, the report should have been
scrapped by the trial Court and a fresh Commissioner should have been
appointed. He has further contended that the Commissioner has unnecessarily
recorded certain findings that the plaintiff is in possession of the suit schedule
property.
5.Per contra, the learned Counsel appearing for the respondent herein had
contended that the Advocate Commissioner has identified the suit schedule
property based upon the survey and the revenue records and filed his report.
Further, there is no allegation of the bias as against the Commissioner. In such
circumstances, the report of the Advocate Commissioner need not be scrapped.
6.I have considered the submissions made on either side and perused the
materials available on record.
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7.This Court by an order dated 28.04.2022, made in S.A.(MD)No.915 of
2010, has directed the trial Court to appoint an Advocate Commissioner to find
out the lie and location of the suit schedule property. The Advocate
Commissioner has filed his report on 05.01.2024. He has expressed his inability
to locate the lie and location of the property based upon the documents.
However, he has proceeded to identify the lie and location of the property and
has filed his report and plan based upon the survey and the revenue records. In
such circumstances, there is no scope for scrapping the report of the Advocate
Commissioner. However, any observations made by the Commissioner with
regard to the possession of the property shall stand expunged. The parties are at
liberty to examine the Advocate Commissioner, if they are so advised.
8.With the above said observations, this Civil Revision Petition stands
disposed of. No costs. Consequently, connected miscellaneous petition is also
closed.
15.04.2025
Internet:Yes/No
Index:Yes/No
RJR
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R.VIJAYAKUMAR, J.
RJR
To
The learned Principal District Munsif,
Nagercoil.
Copy to:-
The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
C.R.P.(PD)(MD)No.216 of 2025
15.04.2025
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