Madras High Court
Jyothiammal vs Jayapal on 18 February, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.2.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).Nos.1079 of 2005 and 882 of 2006 and C.M.P.No.12901 of 2005 and M.P.No.1 of 2008 Jyothiammal ... Petitioner in C.R.P.PD.No.1079 of 2005 ... Respondent in C.R.P.PD.No.882 of 2006 vs. Jayapal ... Respondent in C.R.P.PD.882 of 2006 ... Petitioner in C.R.P.PD.No.1079 of 2005 These civil revision petitions are filed against the orders dated 12.4.2005 and 8.3.2006 passed in I.A.Nos.962 of 2005 and 962 of 2004, respectively, in O.S.No.130 of 2004 by the District Munsif, Nagapattinam. For Petitioner : No appearance in C.R.P.1079 of 2005 and for respondent in C.R.P.No.882/06 For Respondents : Mr.D.Ravi for Mr.M.Thamizhvel in C.R.P.No.1079 of 2005 and for petitioner in C.R.P.No.882/06 COMMON ORDER
Inveighing the orders dated 12.4.2005 and 8.3.2006 passed in I.A.Nos.962 of 2005 and 962 of 2004, respectively, in O.S.No.130 of 2004 by the District Munsif, Nagapattinam, these civil revision petitions are focussed.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of these civil revision petitions, would run thus:-
O.S.No.130 of 2002 was filed by Jothi Ammal, the petitioner in C.R.P.No.1079 of 2005 and respondent in C.R.P.No.882 of 2006 as against the respondent Jayapal in C.R.P.No.1079 of 2005 and petitioner in C.R.P.No.882 of 2006 seeking the following reliefs:
VERNACULAR (TAMIL) PORTION DELETED During the pendency of the said suit, an Advocate Commissioner was got appointed for visiting the suit property and measuring the same with the help of a Surveyor. It appears, the Commissioner also visited the suit property, measured it and submitted his report. Being disconcerted and aggrieved by the Commissioner's report and sketch, the defendant Jayapal filed the I.A.No.962 of 2004 for re-issuance of Commissioner Warrant, directing the Commissioner to measure once again the suit property, with the help of the Inspector of Surveys, Tiruvarur District. Whereupon, the lower Court, after hearing both sides, thought fit to re-issue the Commissioner warrant to the same Commissioner to visit the suit property and measure it with the assistance of the said Inspector of Surveys, as per order dated 12.4.2005. It appears, the Commissioner took steps to re-visit the suit property and measure it. But due to the alleged non-co-operation of both sides, the Commissioner submitted his report to the Court his inability to carry out the mission. Whereupon the Court dismissed the I.A.No.962 of 2004 itself.
3. Challenging the order dated 12.4.2005, the plaintiff-Jyothiammal preferred the C.R.P.No.1079 of 2005 on various grounds inter alia thus:
The lower Court should not have re-issued the Commissioner warrant, in violation of the well settled proposition of law as enunciated in the decisions of this Court reported in 2005(1) MLJ 577, 1995 (2) C.T.C.553 and 2000(3) C.T.C.78.
Accordingly, she prayed for setting aside the order of the lower Court dated 8.3.2006 passed in I.A.No.962 of 2004.
4. However, the said Jayapal, the defendant in the suit, being aggrieved by the dismissal of the I.A.No.962 of 2004 preferred C.R.P.No.882 of 2006 on various grounds, inter alia thus:
the lower Court, without giving due opportunity of being heard to the revision petitioner herein, simply dismissed the I.A. solely based on the submission made by the Advocate Commissioner as though the parties were not co-operating with the Commissioner.
Accordingly, he prays for setting aside the order of the lower Court dated 8.3.2006.
5. There is no representation for Jyothi Ammal in both the C.R.Ps.
6. A bare perusal of the order of the lower Court dated 12.4.2005 would exemplify and indicate that the lower Court thought fit, in its reasoned order, that the same Commissioner visiting once again the suit property, with the assistance of the Inspector of Surveys, Thiruvarur Taluk, would bring forth better facts so that the Court would be able to adjudge the lis in a just and proper manner. Such a finding is purely based on consideration of factual circumstances.
7. The contention of Jyothi Ammal-the petitioner in C.R.P.No.1079 of 2005 as though without scraping the said report, the other Commissioner should not be appointed is neither here nor there, for the reason that the lower Court has not taken a decision to appoint a fresh Commissioner, but it wanted better particulars regarding the suit property, by reissuing the warrant to the same Commissioner and such a measure is not prohibited as per the following decisions cited in the grounds of revision:
(i) Chokkalingapuram Thevangar Vardhaga Sangam Vs. Chokkanathaswami Temple (1995 (II) CTC 553)
(ii) Veppanathar alias Karuppannan and another Vs. Kaliappan (2000 (III) CTC 78)
(iii) Muslim Middle School rep. by its Secretary Vs. Vedavalli Ammal Trust rep. by its President ((2005) 1 MLJ 577)
8. The gist and kernal and the ratio decidendi of those decisions are not applicable to the facts of the present case, in view of my discussion supra.
9. In C.R.P.No.1079 of 2005 in ground No.4 the revision petitioner-Jyothi Ammal assumed as though second Commissioner was appointed. But, in fact, as highlighted supra, no second Commissioner was appointed. No legal flaw could be noticed in the order of the lower Court and virtually the lower Court passed the order based on factual circumstances, which warrants no interference by this Court. Hence, C.R.P.No.1079 of 2005 is liable to be dismissed and accordingly, dismissed. No costs.
10. C.R.P.No.882 of 2006 is for getting restored the I.A.No.962 of 2004.
11. A bare perusal of the order dated 8.3.2006 would ex facie and prima facie make it clear that the order is erroneous. In pursuance of the earlier order dated 12.4.2005, the Commissioner was expected to carry out the mission, irrespective of the fact whether both sides co-operated or not. But it appears, the Commissioner simply returned the warrant as though both sides were not co-operating. It is the duty of the Commissioner to give memo of notice to both sides, fixing the date and time of his visit and measuring the suit property; and if they are not present, then it is for the Commissioner to proceed with the execution of the Commissioner warrant. But in this case, the Commissioner failed to do so. The Court instead of dismissing the I.A. should have mandated the Commissioner to carry out its earlier order in letter and spirit. Instead of doing that the lower Court erroneously dismissed the I.A. Hence, the order dated 8.3.2006 passed in I.A.No.962 of 2004 is set aside by allowing the C.R.P.No.882 of 2006. No costs.
12. The lower Court is directed to mandate the Commissioner to visit the suit property and carry out its earlier order dated 12.4.2005, irrespective of the fact whether both sides would co-operate or not. But the Commissioner is expected to give at least a week's notice to both sides before he visits the suit property. I would also mandate that both sides should co-operate with the Commissioner for carrying out the mission.
Msk To The District Munsif, Nagapattinam