Madras High Court
K.A.Subramanian vs Dr.A.L.Shajahan on 15 July, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.07.2014 CORAM: THE HONOURABLE MS.JUSTICE R.MALA CRP (PD) No.2033 of 2014 and M.P.No.1 of 2014 K.A.Subramanian .. Petitioner Vs. Dr.A.L.Shajahan .. Respondent Prayer : Revision Petition is filed under Article 227 of the Constitution of India, against the order and decreetal order dated 09.01.2014 passed in I.A.No.17294 of 2013 in O.S.No.5628 of 2013 on the file of the learned VII Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr.S.V.Jayaraman ORDER
The Revision Petitioner herein has come forward with this Civil Revision Petition challenging the order dated 09.01.2014 passed in I.A.No.17294 of 2013 in O.S.No.5628 of 2013 on the file of the learned VII Assistant Judge, City Civil Court, Chennai, dismissing the application filed under Order 26 Rule 9 of C.P.C.
2. The revision petitioner herein as plaintiff filed a suit in O.S.No.5628 of 2013 on the file of the learned VII Assistant Judge, City Civil Court, Chennai, for the following relief:
(i) for a permanent injunction restraining the Defendant, his men, agents or anybody acting under him or claiming through him from in any manner changing and altering the structure by removing the walls and putting up additional construction in the terrace and/or in the Ground of the 'schedule mentioned property' except with the planning permission from the appropriate authorities. The defendant/respondent herein filed a written statement and contested the suit. During the pendency of the suit, he filed an application in I.A.No.17294 of 2013 in O.S.No.5628 of 2013 under Order 26 Rule 9 of C.P.C. for appointment of an Advocate Commissioner to inspect the suit property stating that the defendant/respondent herein had purchased the property in the year 2010 and after purchase, he re-modeled the kicthen, Toilet and Bathroom, by removing the slab and walls and further, the entire structure is made up by way of brickwork without columns, pillars and beams and removal of walls and shelves from the walls from its original place, which leads to collapse the entire structure, therefore, to elucidate the matter in dispute and to find out the truth and establish the fact that the Defendant has demolished the walls and made structural alterations, it is necessary to appoint an Advocate Commissioner to inspect the suit schedule property. The trial Court, after considering the arguments, has dismissed the application. Aggrieved against the order of dismissal, the plaintiff/revision petitioner herein has filed the present Civil Revision Petition.
3. The learned counsel appearing for the revision petitioner submitted that after purchase, the respondent herein demolished and altered the structurce of the building and therefore, to prove the same, the appointment of Commissioner is necessary. But, the trial Court has not considered the above said factum and dismissed the application. Hence, he prayed for setting aside the order of the trial Court.
4. At the time of admission, the learned counsel appearing for the revision petitioner is heard at length.
5. Considering the facts and circumstances of the case, as per the dictum of the Apex Court, no Commissioner cannot be appointed the collect the material evidence. Furthermore, it is the duty of the plaintiff/revision petitioner herein to prove the fact that after purchase, the defendant/respondent herein demolished some portion of the suit property and re-constructed the same, which is an unauthorisized one, by way of letting oral and documentary evidence.
6. In such circumstances, the Court cannot be used to collect material evidence to prove the plaintiff's case by appointing an Advocate Commissioner. So, the trial Court has considered all the aspects in proper perspective and came to the correct conclusion. Hence, I do not find any merits in the Civil Revision Petition and the same is liable to be dismissed.
7. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
15.07.2014 ogy To The VII Assistant City Civil Court, Chennai.
R.MALA,J.
ogy CRP (PD) No.2033 of 2014 15.07.2014