Madras High Court
T.R.Venugopal vs / on 11 August, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:11.08.2014 CORAM THE HONOURABLE Ms. JUSTICE R.MALA C.R.P.(PD)No.2671 of 2014 and M.P.No.1 of 2014 T.R.Venugopal ..Petitioner /vs/ 1.C.C.Kuruparan 2.C.C.K.Umayal ..Respondents PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 12.06.2014 made in I.A.No.18484 of 2013 in O.S.No.12382 of 2010 on the file of the VII Assistant Judge, City Civil Court, Chennai. For Petitioner :Mr.V.Subramani O R D E R
Civil Revision Petition is filed against the fair and decreetal order dated 12.06.2014 made in I.A.No.18484 of 2013 in O.S.No.12382 of 2010 on the file of the VII Assistant Judge, City Civil Court, Chennai. 2.At the time of admission, argument of the learned counsel for the petitioner is heard in length.
3.The revision petitioner herein as a plaintiff filed a suit for permanent injunction restraining the defendants, their men, agents from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the southern side compound wall of the plaintiff's property and for costs. In para-4 of the plaint, it is stated as follows:
.. .. there is compound wall three sides the suit property on west side partially, including on the southern side of the suit property. There is a shed put up by the plaintiff on the southern side of the suit property for keeping the materials and the said shed is supported by the southern side compound wall of the suit property and the compound wall is in existence even from the date of purchase of the suit property, by the plaintiff.
4.During pendency of the suit, the defendants have demolished the compound wall in question in a high handed manner and further they also demolished a shed belonged to the plaintiff and threw all the articles therein and hence the plaintiff filed an amendment application and sought for including para-8(a) to 8(d) in the plaint and also prayed for mandatory injunction and that application was allowed and amended petition and plaint copy have been filed. The defendants filed the written statement and contested the suit.
5.Then the plaintiff has filed an application in I.A.No.18484 of 2013 under Order 26 Rule 9 of C.P.C. for appointment of an Advocate Commissioner to note down the physical features of the suit property along with the Surveyor. The trial Court, after hearing objection raised by the respondents/defendants, dismissed the application, against which, the present revision petition is preferred by the plaintiff/revision petitioner.
6.Considered the submission made by the learned counsel for the revision petitioner and perused the typed set of papers.
7.It is appropriate to incorporate the prayer and description of the suit property in the plaint, which are extracted hereunder:
a) for a permanent injunction restraining the defendants, their men, agents, servants or anybody claiming under or through them from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the southern side compound wall of the plaintiff's property bearing Plot No.4969, A.C.38, Anna nagar, Chennai-40, either by demolishing the same or in any other manner.
(order dated 6-11-2012 I.A.No.5158 of 2010 para 12(aa) aa) for a mandatory injunction directing the defendants for men, agents or servants or any one claiming under them or acting on their behalf to restore the compound wall of the plaintiff on the southern side which was existing on the date of plaint, by demolishing the present illegal compound wall put up by the defendants herein and pending the above suits,
b) for the costs of the suit; and
c) other reliefs;
Schedule of property:
All that piece and parcel of house, ground and premises situated in the sanctioned plan of west Madras neighborhood scheme, Plot No.4969, No.38, AC Block at Arignar Anna Nagar (R.S.No.54 part of Naduvankarai Village), Block 1B, T.S.No.184 and measuring one ground and 930 sq.ft. and there abouts bounded on the North by 30 feet road, South by Plot No.4978, East by Plot No.4970 and West by O.P.S. measuring on the North 45 feet, East 74 feet, Southern 45 feet and on the West 74 feet in all measuring one ground and 930 sq.ft. along with compound walls on four sides with a shed standing on the southern side wall of the plaintiff's property situate within SRO Anna Nagar.
8.It is the case of the plaintiff that he purchased the property on 07.05.1984 and at the time of purchasing the property, he has also purchased the southern side compound wall. Thereafter, he filed an application for amendment in I.A.No.5158 of 2010. Before filing the present application, the plaintiff has also filed an application in I.A.No.23182 of 2010 for appointment of Advocate Commissioner and in pursuance of the same, the Advocate Commissioner was appointed and he inspected the suit property and found that there is no demolition of compound wall on the southern side. After filing amendment application only, application for appointment of Commissioner has been filed.
9.Now the plaintiff has come forward with the present application in I.A.No.18484 of 2013 for appointment of Advocate Commissioner for the same relief as he sought for in the previous application. So it is appropriate to incorporate the prayer as sought for in the present application, which reads as follows:
.. .. to appoint an Advocate Commissioner to measure the extent of the properties of both the plaintiff and the defendants, assess the damage caused on demolition of the plaintiff's southern side compound wall, the plaintiff's shed resting on the said wall and the erection of the new wall by the defendants on the plaintiff's property and note the physical features of the suit property having regard to the dispute in the suit wall and the Commissioner has to take the assistance of the Government Surveyor to find out the correct measurements on the official records and the documents submitted by both the parties.
10.Considering the aforestated circumstances of the case, once the Commissioner was appointed and inspected the suit property and filed his report, for the same relief, there is no necessity for appointment of second Advocate Commissioner to inspect the suit property again. Under such circumstances, I am of the view, to collect the material evidence only, the revision petitioner/plaintiff has come forward with series of applications. It is pertinent to note that the revision petitioner/plaintiff has already filed an application in I.A.No.5158 of 2010 for amendment of para-8(a) to 8(d) in the plaint and also for the relief of mandatory injunction in the prayer, which was allowed on 06.11.2012. The plaintiff has also filed an application in I.A.No.23182 of 2010 for appointment of Commissioner to inspect the suit property. Now the plaintiff has filed the present application in I.A.No.18484 of 2013 for appointment of Advocate Commissioner to measure the properties of both the plaintiff and the defendants and to assess the damages caused on demolition of the plaintiff's shed. Under such circumstances, I am of the considered opinion, it is only vexatious application and abuse of process of the Court. So I do not find any merits in the revision petition and the revision petition is dismissed as devoid of merits.
11.In the result, the Civil Revision Petition is dismissed with costs. Consequently, connected Miscellaneous Petition is closed.
11.08.2014 Internet:Yes kj To VII Assistant Judge, City Civil Court, Chennai.
R.MALA, J.
kj C.R.P.(PD)No.2671 of 2014 and M.P.No.1 of 2014 11.08.2014