Madras High Court
S.Selvaraj(Died) vs V.David Michael on 23 January, 2025
C.R.P.(PD)(MD) No. 253 of 2020
THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 20.11.2024
Pronounced on 23.01.2025
CORAM
THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD) No.253 of 2020 and
CMP(MD).No.1535 of 2020
1.S.Selvaraj(died)
2.Jayarani
3.Rajesh Johnson ... Petitioners
(petitioners 2 and 3 are brought on record
as LRs of the deceased sole petitioner vide
Court order, dated 11.11.2024 made in
CMP(MD).Nos.11067, 11069 and 11073 in
CRP(MD).No.253 of 2020 by KGTJ)
Vs.
V.David Michael .. Respondent / Plaintiff
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India against the fair and decreetal order, dated 03.12.2019 passed in
I.A.No.174 of 2018 in A.S.No.33 of 2018 on the file of the Sub Court,
Tiruchendur.
For Petitioners : Mr.M.P.Senthil
For Respondents : Mr.S. Srinivasa Ragavan
for Mr.G.Rajaraman
*****
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Page No. 1 of 7
C.R.P.(PD)(MD) No. 253 of 2020
ORDER
This Civil Revision Petition is filed against the fair and decreetal
order, dated 03.12.2019 made in I.A.No.174 of 2018 in A.S.No.33 of
2018 on the file of the Sub Court, Tiruchendur.
2. The revision petitioners are the appellants in A.S.No.33 of 2018
on the file of the Sub Court, Tiruchendur and the defendants in the suit in
O.S.No.113 of 2012 on the file of the District Munsif Court,
Srivaikundam. The said suit was filed by the respondent / plaintiff for
declaration and for mandatory injunction. The trial Court by its decree
and Judgment, dated 09.08.2017 partly decreed the suit by granting
declaratory relief in respect of the 2nd and 3rd items of the suit property and
also granted the reliefs of permanent injunction restraining the defendants
from interfering with the plaintiff's usage therein; for the maintenance of
plaintiff's western and southern walls. In respect of the mandatory
injunction with regard to the 4th schedule of property, the suit was
dismissed. Against the disallowed portion the plaintiff preferred an
appeal in A.S.No.33 of 2018 before the Sub Court, Thiruchendur.
Whereas the defendant preferred an appeal in A.S.No.447 of 2017 before
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C.R.P.(PD)(MD) No. 253 of 2020
the Sub Court, Thiruchendur against the decree and Judgment passed
against him in the above suit. While so, the plaintiff preferred an
application in I.A.No.174 of 2018 in A.S.No.33 of 2018 seeking for
appointment of Advocate Commissioner to note down the alleged
encroachment made by the revision petitioner / defendant in the 4th
schedule property. The said application was allowed by the first appellate
Court. Aggrieved by the same, the present revision is preferred by the
revision petitioner who is the respondent in the said appeal suit.
3. The learned counsel appearing for the revision petitioners /
defendants would submit that originally the respondent / plaintiff filed an
application in I.A.No.229 of 2013 in O.S.No.113 of 2012 for appointment
of an Advocate Commissioner and the same was allowed by order, dated
01.01.2014. In spite of the same, the respondent did not take any steps to
measure the property almost for 2 ½ years and finally the respondent
himself not pressed the said application. Hence, the trial Court dismissed
the said application on 29.08.2016. While so, the respondent again filed
two applications in I.A.Nos.322 and 323 of 20217 for reopening the case
and for appointment of Advocate Commissioner. Both the applications
were dismissed by the trial Court on 16.06.2017. The said order was not
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C.R.P.(PD)(MD) No. 253 of 2020
challenged by the respondent and therefore, the same has attained finality.
In such circumstances, the first Appellate Court ought not to have
entertained the present application for appointment of an Advocate
Commissioner. Therefore, appointment of Advocate Commissioner
during the First Appellate stage is totally unwarranted and no useful
purpose will be served to dispose the appeal. Hence, prayed for setting
the aside the order passed by the first Appellate Court in I.A.No.174 of
2018 in A.S.No.33 of 2018.
4. On the other hand the learned counsel for the respondent /
appellant / plaintiff would submit that for ascertaining the actual
encroachment made by the revision petitioner / defendant, appointment of
an Advocate Commissioner is necessary. It is further submitted that no
prejudice would be caused to the other side by appointing an Advocate
Commissioner for the said purpose. Hence, the order of First Appellate
Court calls for no interference by this Court.
5. Heard on both sides and perused the materials available on
record.
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C.R.P.(PD)(MD) No. 253 of 2020
6. Admittedly, the applications filed by the respondent / plaintiff
before the trial Court were dismissed and the order passed by the trial
Court was not challenged. Even though there is no impediment to
entertain the application for appointment of an Advocate Commissioner
in the Appellate stage for an effective adjudication, however, the same
cannot be granted simply it is asked by the respondent / plaintiff. The
petitioner himself established that the appointment of Advocate
Commissioner is essential to have an effective adjudication. No doubt, in
case of encroachment, the appointment of Advocate Commissioner is
necessary to measure the property for finding the alleged encroachment.
The learned counsel appearing for the respondent / plaintiff would submit
that in the event, the respondent succeeds in the appeal suit, it would be
difficult for the respondent / plaintiff to execute the decree for recovery of
possession. This arguments made by the learned counsel is
un-sustainable. On perusal of the plaint, the description of the 4th
schedule property it is clearly given and therefore, it is not necessary for
appointing an Advocate Commissioner to inspect and measure the suit
property. Moreover, the application was made, when appeal itself was
listed for final arguments. The Appellate Court is bound to act on the
basis of available oral and documentary evidence on record. The
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C.R.P.(PD)(MD) No. 253 of 2020
Commissioner cannot be appointed for collecting the evidence. The
plaintiff cannot be allowed to fill up the lacuna at appellate stage.
7. In the result, this Civil Revision Petition is allowed setting aside
the order, dated 03.12.2019 made in I.A.No.174 of 2018 in A.S.No.33 of
2018 on the file of the Sub Court, Tiruchendur. The first Appellate Court
is directed to take up the appeal suit in A.S.No.33 of 2028 for final
hearing and dispose the same within a period of three months from the
date of receipt of copy of this order. No costs. Consequently, the
connected Miscellaneous Petition is closed.
23.01.2025
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
trp
Copy To:
The Sub Court, Tiruchendur.
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C.R.P.(PD)(MD) No. 253 of 2020
K.GOVINDARAJAN THILAKAVADI, J.
trp
Pre-Delivery Order made
in
C.R.P.(MD) No.253 of 2020 and
23.01.2025
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