Madras High Court
Pakiyathai vs Magesh Mani on 8 January, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/01/2013 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No.302 of 2008 and M.P(MD)No.1 of 2008 1.Pakiyathai 2.Pandidurai 3.Muthu Lekshmi 4.Chellasamy 5.Indira 6.Mouna Sundari 7.Rajeshwari 8.Sumathy ... Petitioners/Appellants/ Plaintiffs Vs 1.Magesh Mani 2.Sanmughathai 3.C.Sivakumar ... Respondents/Respondents/ Defendants Prayer Petition filed under Article 227 of the Constitution of India, to set aside the order dated 28.11.2007 passed in I.A.No.87 of 2007 in A.S.No.46 of 2006, by the learned Principal Sub Judge, Tenkasi. !For Petitioners ... Mr.T.S.R.Venkataramana ^For Respondents ... Mr.S.Ramesh alias Ramaiah for R.2 No representation for R.1 and R.3 * * * * * :ORDER
This Civil Revision Petition has been filed to get set aside the order dated 28.11.2007 passed in I.A.No.87 of 2007 in A.S.No.46 of 2006, by the learned Principal Sub Judge, Tenkasi.
2. Heard the learned Counsel for the petitioner and the learned Counsel for the second respondent, but there is no representation on behalf of the respondents 1 and 3.
3. A re'sume' of facts absolutely necessary and germane for the disposal of the Civil Revision Petition would run thus:
(i) The revision petitioners filed the suit in O.S.No.24 of 2001 seeking the following reliefs:
"m) ,jd; 1k; jgrpy; brhj;J thjpfSf;Fk; 4k; gpujpthjpf;Fk; ghj;jpag;gl;lbjd 1> 2> 3 gpujpthjpfSf;F vjphpy; tpsk;g[if bra;tjd; K:yk; 1k; jgrpiy thjpfs;
kw;Wk; 4k; gpujpthjp mDgtpj;J tUtij 1 Kjy; 3 gpujpthjpfnsh> mth; tifahl;fnsh> ntiy Ml;fnsh Vt[ Ml;fnsh vt;tpj ,ila{Wk; bra;af;Tlhbjd epue;ju jilahiz gpwg;gpf;Fk; gof;Fk;> M) ,jd; 2k; jgrpiy 1k; thjpf;F 1> 2 gpujpthjpfs; nfhh;l;lhh; Fwpg;gpLk; Xh; jpdj;jpw;Fs; fpiuak; Koj;Jj; jUk;gof;Fk; mth;fs; mt;thW vGjpj; ju jtWk; gl;rj;jpy; nfhh;l; K:yk; 2k; jgrpiy bghWj;J 1k; thjpf;F fpiuag;gj;jpuk; vGjpj; jUk;gof;Fk; 1k; jgrpiyg; bghWj;J rPh;jpUj;jg; gj;jpuk; vGjpj; jUk;gof;Fk;> ,) ,jd; 3k; jgrpiy 1k; thjp mDgtpj;J tUtij 1 Kjy; 3 gpujpthjpfnsh mth; jk; tifahl;fnsh> ntiy Ml;fnsh> Vt[ Ml;fnsh vt;tifapYk; ,ilQ;ry; bra;af;TlhJ vd 1> 3 gpujpthjpfSf;F vjphpy; epue;ju jil Miz gpwg;gpf;Fk;gof;Fk;> <) Myq;Fsk; rhh;gjpthsh; mYtyfj;jpy; 1k; gpujpthjp tif a[il 2773/81 vGjpf; bfhLj;Js;s gj;jpuy; cs;s rh;nt vz;.170I 171 vd rPh;jpUj;jt[k;> 1> 2 gpujpthjpfs; mg;go bra;a jtWk; rl;grk;; ePjpkd;wk; K:yk; rPh;jpUj;jk; bra;a ghpfhujPh;g;g[ tHq;Fk;gof;Fk;......" (extracted as such)
(ii) The written statement was filed by the defendants 1 and 2. The third defendant filed a separate written statement. Ultimately, the trial Court dismissed the suit, as against which the appeal was filed by the plaintiffs. During the pendency of the appeal, I.A.No.87 of 2007 for appointment of an Advocate Commissioner to measure the suit property with the help of a Surveyor and to submit a report along with a sketch, was filed by the appellants/plaintiffs. After hearing both sides, the lower appellate Court dismissed the said application and refused to appoint an Advocate Commissioner.
4. Challenging the said order, this Civil Revision Petition has been focussed on various grounds.
5. The learned Counsel for the revision petitioners would pyramid his arguments by putting forth and setting forth certain facts, which could tersely and briefly be set out thus:
The lower appellate Court simply held as though the appellants/plaintiffs are trying to fill up the lacuna and he cannot at the appellate stage get the Advocate Commissioner appointed without going into the real merits in this appeal. The evidence available on record itself and the admissions on the defendants' side would be sufficient to decree the suit, even then, the plaintiffs took steps to bring on record additional facts so as to enable the Court to base its judgment on an even keel. Accordingly, he would pray for setting aside the order of the lower appellate Court and for appointment of an Advocate Commissioner.
6. Per contra, by way of challenging and impugning the arguments put forth on the side of the revision petitioners/plaintiffs, the learned Counsel for the second respondent/third defendant would submit that the defendants 1 and 2 happened to be the common vendors of the plaintiffs as well as the third defendant. In fact, twenty years after purchase by the plaintiffs from the defendants 1 and 2, the former did choose to file the said suit for rectification of the sale deed in respect of the first item and in respect of the second item, they want specific performance of the agreement to sell. It is the specific case of the plaintiffs that in the said sale deed, S.No.170 is mentioned instead of S.No.171. Similar mistake had crept in the agreement to sell also. Whereas the third defendant purchased the property in S.No.171. If the Advocate Commissioner visits the suit property and files a report, then that will lead to multiplicity of proceedings and the parties cannot work out their remedy within the preent scope of the suit. Accordingly, he would pray for the dismissal of this Civil Revision Petition.
7. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower appellate Court in dismissing the said application?
The Point:
8. I would like to recall the famous adage 'Every trial is a voyage of discovery in which the truth is the quest.". A litigant in the litigative process cannot achieve success by hiding the facts and relying upon technicalities which are the hand-maids of justice and based on that alone, the pleas cannot be thrown away and that would amount to throwing the baby along with bathe water.
9. Here, the crucial point to be noted is as to whether the plaintiffs purchased the property in S.No.170 or S.No.171. Similarly, it has to be found out whether the agreement to sell relating to the second item is with reference to the property in S.No.170 or S.No.171. Precisely, it is the case of the plaintiffs that both items are situated in S.No.171 and the boundaries do tally; however, there is a mistake in specifying the survey number only. In such a case, if an Advocate Commissioner visits the suit property and measures it with the assistance of a Surveyor by referring to the Survey map and also the available documents, certainly the truth will come to limelight. Then, the question of whose right is prior and whose right is next to it, could be worked out, for which the parties have to take appropriate steps.
10. I recall and recollect the legal maxim "Qui prior est Tempore potior est Jure."[The person who is prior in time is stronger in right.]. Accordingly, they have to work out their remedy and for that, the Court should give opportunity also.
11. The contention on the side of the second respondent/third defendant is that the plaintiffs failed to avail the opportunity accorded to him before the trial Court, but that it does not mean that they should be deprived of asserting their right by getting appointed an Advocate Commissioner for ever. The lower appellate Court wrongly understood the fact as though the plaintiffs were trying to fill up the lacuna. In view of the ratiocination adhered to by me in deciding this matter, the I.A., could be allowed. Accordingly, the point is answered.
12. On balance, I am of the considered view that I.A.No.87 of 2007 should be allowed to the extent as under:
The lower appellate Court shall appoint an Advocate Commissioner to visit the suit property with the assistance of an Advocate Commissioner and measure the same with reference to the Survey Map and the documents of both the parties and submit a report after noting down the physical features also. Whereupon, the lower appellate Court shall give due opportunity to the parties to file additional pleadings and to adduce additional evidence if necessary and accordingly, deal with the matter as per law.
13. In the result, this Civil Revision Petition is allowed to the extent indicated above. Consequently, the connected Miscellaneous Petition is closed. No costs.
14. On hearing the pronouncement of the order, the learned Counsel for the second respondent/third defendant, would make an extempore submission that in the event of the Advocate Commissioner finding that the suit property as well as the property purchased by the third defendant, are situated in one and the same survey number i.e., S.No.171, then the third defendant should be given liberty to work out his remedy and if necessary, adjustment of his right within the same survey number. I am of the view that the same has to be worked out by the third defendant by filing appropriate petitions and raising appropriate pleas before the lower appellate Court as per law.
rsb To The Court of Principal Sub Judge, Tenkasi.