Madras High Court
A.Venkatasubban vs Rajashankar on 23 February, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2017 CORAM THE HON'BLE MR. JUSTICE M.V.MURALIDARAN C.R.P.(NPD) Nos.1195 and 1196 of 2013 and M.P.No.1 of 2013 A.Venkatasubban .. Petitioner vs 1. Rajashankar 2. Sivanesan .. Respondents Revisions filed under Article 227 of Constitution of India against the fair and decreetal orders dated 8.11.2012 made in I.A.Nos.262 and 263 of 2012 in A.S.No.30 of 2011 on the file of the learned Additional Sub Judge, Chengalpattu. For Petitioner : Mr.I.Abrar Mohamed Abdullah For Respondents : Mr.K.V.Babu ORDER
These civil revision petitions are filed assailing the fair and decreetal orders dated 8.11.2012 made in I.A.Nos.262 and 263 of 2012 in A.S.No.30 of 2011 on the file of the learned Additional Sub Judge, Chengalpattu.
2. The petitioner, who is the plaintiff, had filed the suit in O.S.No.66 of 1999 seeking, inter alia, declaration that he is the absolute owner of the suit property; recovery of possession of the suit property to deliver possession of the same to the petitioner; and for mandatory injunction, specifically alleging that the respondents had encroached the suit property.
3. The respondents filed written statement and additional written statement and resisted the prayer made in the suit tooth and nail by denying the plaint averments and pleading that they are in possession of the land and the said land belongs to them.
4. The learned District Munsif and Judicial Magistrate, Thirukuzhukundram, by decree and judgment dated 5.8.2011, dismissed the suit holding that the petitioner had not taken steps to measure the suit property.
5. Impugning the above said decree and judgment, the petitioner filed A.S.No.30 of 2011 on the file of the Additional Sub Court, Chengalpattu. In the said appeal, the petitioner filed I.A.Nos.262 and 263 of 2012 for amendment of plaint to incorporate the new survey number of the property and for appointment of Commissioner to measure the suit property and the property of the defendants with the help of Taluk Surveyor.
6. The learned Additional Sub Judge, Chengalpattu, by order dated 8.11.2012, which is under challenge in these revisions, dismissed the interlocutory applications.
7. Calling in question the said order, the present revisions are filed by the petitioner.
8. The learned counsel appearing on behalf of the petitioner submitted that by amending the plaint to incorporate the new survey number, no prejudice would be caused to the respondents and in any event, since the suit was instituted prior to 2002, the amended provisions of Order VI Rule 17 would not apply.
9. He further contended that inasmuch as the trial Court while dismissing the suit had categorically observed that the petitioner should have taken steps to identify the suit property by measuring it with the help of the Surveyor, the learned Additional Sub Judge ought not to have dismissed the application seeking appointment of an Advocate Commissioner, more so when the suit is for recovery of possession and mandatory injunction and for granting the same the exact extent of the property is required to be measured with reference to the documents.
10. In support of his plea, the learned counsel for the petitioner relied on the following decisions: (i) V.S.Kamaruddin v. M.A.Abdul Majid, 2004 3 LW 469; (ii) Muniswami v. M.Manickam and others, 2009 2 LW 817; and (iii) Manikandan v. Nandan @ Gnanamuthu and others, (2011) 6 MLJ 920.
11. Per contra, the learned counsel appearing on behalf of the respondents submitted that in a suit for declaration and injunction, where the description of property is bereft of boundaries, the appointment of an advocate commissioner to ascertain the boundaries of property, at the appellate stage, would tantamount to collection of evidence and the same would be prejudicial to the respondents.
12. It was further contended that the petitioner had already filed an interlocutory application for appointment of an Advocate Commissioner and the same was dismissed and without challenging the said order by way of a revision, the petitioner had filed another interlocutory application seeking appointment of an advocate commissioner and the same is hit by the principle of res judicata.
13. To fortify the above said arguments, the learned counsel for the respondents placed reliance on the following decisions: (i) Santha Satheesh v. H.J.Walter and others, 2012 (6) CTC 502; (ii) The Principal St. Patrick School and College v. Amaravathi, 2010 (2) MWN (Civil) 165; (iii) R.Nandakumar v. The Dindigul Co-op Housing Building Society Limited, 2008 3 LW 160; (iv) Anil Nahar and another v. Vijay Nahar, 2013 (4) CTC 554; and (v) Natesan and others v. Rajendran and others, 2013 (2) CTC 859.
14. I heard Mr.I.Abrar Mohamed Abdullah, learned counsel for the petitioner and Mr.K.V.Babu, learned counsel for the respondents and perused the documents available on record.
15. It is beyond any cavil that the petitioner had filed I.A.No.311 of 2010 in O.S.No.66 of 1999 seeking appointment of Commissioner to measure the suit property. Admittedly, the said interlocutory application was dismissed by the Court below and till date the petitioner had not taken any steps to challenge the said interlocutory order. As a result, the said order had attained finality.
16. A Division Bench of this Court in Anil Nahar and another v. Vijay Nahar, supra, had categorically held that decisions rendered in interlocutory applications would amount to res judiciata to subsequent proceedings. Similar view was also taken in the decision in Natesan and others v. Rajendran and others, supra.
17. Therefore, the petitioner, at the appellate stage, is not entitled to seek the very same relief and the same is hit by the principle of res judicata.
18. In R.Nandakumar v. The Dindigul Co-op Housing Building Society Limited, supra, it was held as under:
10. The discretion for allowing additional evidence at Appellate stage cannot be exercised to patch up the weak points of his case and fill up lacuna in the Appellate court by production of additional evidence.
11. In my considered view, there is no justification for receiving additional evidence by appointment of Advocate-commissioner for the second time. The applicant had knowledge of report of the Advocate-commissioner. The Revision petitioner-Appellant was in no way misled regarding the report already filed. While so, the second opportunity to adduce further evidence by taking the Advocate-commissioner for the second time cannot be given to the Revision petitioner-Appellant. The learned Appellate judge has rightly dismissed the Petition and the impugned order does not suffer from any infirmity. The decisions relied upon by the learned counsel for the Revision petitioner-Appellant have no bearing to the factual matrix of the present case.
19. The lower Court had observed that the petitioner ought to have taken steps to measure the suit property with the help of surveyor. The suit pertains to the year 1999 and after 11 years, that too after cross examination of the petitioner, the petitioner had filed an interlocutory application before the Lower Court and the same has been dismissed. Now again at the appellate stage, i.e., after lapse of almost 13 years, another interlocutory application is filed for the very same relief, which in my considered opinion has rightly been dismissed by the Court below.
20. At this stage, one more fact needs reiteration. The trial Court had suo motu appointed an Advocate Commissioner to inspect the suit property, note down the physical features and file a report and, accordingly, a report has been filed way back on 24.9.1999 and as per the report, during 2005, the suit schedule has also been amended and on after that during trial, after the cross examination of the petitioner, he had once again come forward with an interlocutory application which was dismissed by the trial Court.
21. In such backdrop, the Appellate Court observed that the application filed once again, that too belatedly, based on the observation made by the Trial Court in the judgment cannot be entertained at the appeal stage, more so when there is no change of circumstances.
22. It is true that there is no limitation in law for filing of an application praying for an appointment of Advocate Commissioner and such application can be filed even at the time of hearing of appeal and there is no embargo in this regard in law, but the power of appointment of an Advocate Commissioner by a Court of law even by the Appellate Court, for that matter, has to be exercised with great care, circumspection and caution and the application praying for an appointment of an Advocate Commissioner to identify the property or measure the suit property cannot be allowed as a matter of course or routine, as has been held in Manikandan v. Nandan @ Gnanamuthu and others, supra.
23. In the case on hand, with the risk of repetition, it is reiterated that the first advocate commissioner filed his report in the year 1999 and based on the same plaint schedule property was amended. After that, the petitioner had been whiling away his time and all of a sudden in the year 2012, at the appellate stage, again sought appointment of the Advocate Commissioner. This Court finds no reason to take a different view than the one taken by the Appellate Court on this aspect.
24. Coming to the amendment to the plaint schedule as prayed for by the petitioner, it is seen from the records that the grievance of the petitioner is that he had furnished Old Survey No.12/1, which is now assigned a new Survey No.481/8, and the basis on which such amendment is sought is the FMB Sketch.
25. It is seen from the records that way back on 21.10.2003, the respondents have specifically averred in their written statement that the description of the suit property in the plaint is not proper and no boundaries have been specified. Even during cross examination of the petitioner, the respondents had put a specific query to the petitioner as to the patta and non filing of FMB Sketch, which aspect has also been referred to in the judgment of the trial Court. For a suit filed in 1999, when a specific query was put regarding non filing of FMB Sketch, the petitioner had put the issue on the back burner and had not taken any effort to file the same till the filing of the interlocutory application in the year 2012, that too at the appellate stage.
26. It is not as if the petitioner was unaware of the lacuna of not filing the FMB Sketch. During cross examination a specific query was put in the year 2003, but he had slept over the issue for almost nine years since then and at the appellate stage, he woke from the slumber and seeks amendment of plaint schedule and appeal schedule property, which in my considered opinion had rightly been rejected by he Court below.
27. In the decision in Muniswami v. M.Manickam and others, supra, the Court was dealing with a case where the suit was of the year 2003 and amendment to the plaint was sought in 2006 that too before the trial Court and not before the Appellate Court. The said decision is distinguishable on facts.
28. It is useful to refer to a decision of this Court in The Principal St. Patrick School and College v. Amaravathi, supra, wherein this Court held that when the appellate Court did not find that the available material is insufficient or doubtful, the appellate Court is bound to act on basis of available oral and documentary evidence on record and the Commissioner cannot be appointed to perform function of Court or procure evidence by allowing plaintiff's to fill up lacuna at Appellate Stage. This Court is in complete agreement with the said proposition.
29. In view of the peculiar facts and circumstances of the case on hand, the other decisions relied on either side need no further reference in these revisions.
30. In such view of the matter, this Court finds no reason to entertain these civil revision petitions.
31. In the result, these civil revision petitions are dismissed and the orders dated 8.11.2012 passed in I.A.Nos.262 and 263 of 2012 in A.S.No.30 of 2011 by the learned Additional Sub Judge, Chengalpattu stands confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.
23.02.2017 vs Note:Issue order copy on 01.10.2018.
Index : Yes To The Additional Sub Judge Chengalpattu.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(NPD) Nos.1195 and 1196 of 2013 and M.P.No.1 of 2013 23.02.2017