Madras High Court
Sampath vs Mandandoss
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
CRP.(PD).No.874 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 10.08.2022
Delivered On: 22.09.2022
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
CRP(PD).No.874 of 2020
and
C.M.P.No.4657 of 2020
Sampath .. Petitioner/Petitioner/Defendant
Vs.
Mandandoss .. Respondent/Petitioner/Plaintiff
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the fair and decreetal order dated
06.12.2019 in I.A.No.654 of 2015 in O.S.No.510 of 2015 on the file of
the learned Additional District Munsif, Alandur and consequently
dismiss the I.A.No.654 of 2015.
For Petitioner : Mr.M.Thangadurai
For Respondent : Mr.J.Sudhakaran
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CRP.(PD).No.874 of 2020
ORDER
This Petition has been filed to set aside the fair and decreetal order dated 06.12.2019 in I.A.No.654 of 2015 in O.S.No.510 of 2015 on the file of the learned Additional District Munsif, Alandur.
2. It is the submission of the learned Counsel for the Petitioner that he had filed the Suit in O.S.No.510 of 2015 seeking bare injunction restraining the interference from the possession and enjoyment of the Suit property. The I.A.No.654 of 2015 in O.S.No.510 of 2015 was allowed. Interim Order was passed against the defendant in the Suit. During the pendency of the Suit, the defendant therein filed written statement but without giving notice to the Plaintiff in O.S.No.311 of 2013 had filed application before the Taluk Surveyor to measure the property and to set right the defect in FMB. After getting the same, without notice to the Plaintiff in O.S.No.311 of 2013, the defendant in O.S.No.311 of 2013 had filed the Suit in O.S.No.510 of 2015 seeking the relief of mandatory injunction and permanent injunction against the Plaintiffs. The written statement of the Defendant in O.S.No.510 of 2015, the Petitioner herein who is the Plaintiff in O.S.No.311 of 2013 2/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 had resisted the attempts of the Defendants in O.S.No.311 of 2013 stating without notice he sought rectification of FMB and measurement using the services of Taluk Surveyor, which is objectionable and unacceptable. After getting the amendment, he had sought mandatory injunction and permanent injunction in the Suit in O.S.No.510 of 2015, injunction was not granted. Therefore, the Plaintiff in O.S.No.510 of 2015 who is the Defendant in O.S.No.311 of 2013 had sought appointment of Advocate Commissioner to measure the Suit property with the help of the Taluk Surveyor and with the help of sale deeds of Plaintiffs and Defendant in O.S.No.510 of 2015. It is the submission of the learned Counsel before the trial Court in O.S.No.510 of 2015 that the unnecessary oral evidence could be reduced if the Advocate Commissioner visit the Suit property and measure the Suit property of the Plaintiff and Defendant along with their sale deeds and FMB sketch.
2.1. The Plaintiff in O.S.No.311 of 2013 who is Defendant in O.S.No.510 of 2015 had resisted the appointment of Advocate Commissioner regarding possession. It is the further submission of the learned Counsel for the Revision Petitioner who is the Plaintiff in 3/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 O.S.No.311 of 2013 that after getting the FMB by invoking the discretion of the Taluk Surveyor and measuring the property without notice to the Plaintiff in O.S.No.311 of 2013 and after getting an order through the amendment in the FMB, the Suit is filed by the Defendant as though he is enjoying the property as per the rectified FMB. Therefore, if the Surveyor goes to the Suit Property, the original FMB will be lost. Ignoring those objections of the Plaintiff in O.S.No.311 of 2013 who is the Respondent and the Defendant in the O.S.No.510 of 2015, the learned District Munsif, Alandur had allowed the appointment of Advocate Commissioner.
3. Aggrieved by the same, the Plaintiff in O.S.No.311 of 2013 before this Court with this Petition.
4. The learned Counsel for the Respondent submitted that the Order passed by the learned District Munsif,Alandur is well-reasoned Order and it does not warrant any interference. Further, if both the sale deeds along with Revenue records are verified by the Advocate Commissioner with the help of Taluk Surveyor or Firka Surveyor and 4/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 measure the property with the help of respective sale deeds and prior revenue record it will help in reducing much of it. 5/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 4.1. In support of his contention, he had relied on the ruling reported in (2008) 6 MLJ 359 in the case of A.Sulthan and Another Vs. Mohammed Dasthagir, the relevant portion is extracted hereunder:
“Code of Civil Procedure (5 of 1908), Order 26, Rule 9 – Suit for bare injunction – Application by defendant for appointment of Advocate-Commissioner, dismissed – Revision against that order – Even in a bare injunction suit, appointment of an Advocate Commissioner, can be allowed on the basis of the pleadings – Court can grant the relief of appointment of Commissioner to enable the respective parties and the Court to have first hand knowledge about the allegations and counter allegations – Local investigation would facilitate the Court to decide the issue more effectively – Impugned order set aside – Revised allowed.
5. In their affidavit filed in support of the I.A.No.2214 of 2007, it is stated that the revision petitioners are the lawfurl owners who are in possession and enjoyment of their property and the respondent/plaintiff trespassed into their property to an extent of 9 inches and only to overcome the same, the suit itself has been filed. This was resisted by the respondent/plaintiff by filing a counter by contending that there is no dispute regarding the measurement of the property and therefore the question of appointing an Advocate Commissioner does not arise.
10. I have considered the rival submissions carefully with regard to facts and citations.
11. In Ponnuswamy Pandaram V. Salem Vaiyappamalai Jangamar Sangam rep. By its President Palanivel, having its office at Vaiyappamalai, Tiruchengode Taluk (Supra), this Court while considering an application, which was rejected by the trial Court for appointment of an Advocate Commissioner in a suit for bare injunction held as under: 6/12
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8. Coming to the questions as to whether, on the basis that the order passed by the Court below is a case decided, there is a warrant for interference within the meaning of Section 115 of the Code, I find that it is so. A controversy, as we would see from the pleadings, has arisen as to whether the constructions put up by the third defendant are within his land or whether they have encroached into the lands of the plaintiff. A local investigation is the best way to find out the position and the party, namely, the third defendant coveting to place the evidence before the Court through local investigation by the Commissioner cannot be shut out of that right. A misconception, has weighed in the mind of the Court below when it reasoned that there is no dispute about the ownership of S.No.289/1 by the third defendant. That is not the point in issue. Shutting out the evidence which a party is entitled to place before Court to substantiate his case, definitely decides that right of the party, adversely against him and in this view, the order passed by the Court below is a “case decided” and apart from that, on merits the order passed by the Court below comes within the mischief of the ratio adumbrated in Section 115 of the Code. There has been a failure to exercise jurisdiction vested in it by the Court below to a patent misconception of the position and this obliges me to interfere in revision”.
14. From the above, it is clear that the Court can grant the relief of appointment of Commissioner to enable the respective parties and the Court to have the first hand knowledge about the allegations and counter allegations and this cannot be denied.”
5. The reliance placed on the learned Counsel for the Petitioner 7/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 will not be helpful to the Petitioner herein. As rightly pointed out by the learned Counsel for the Petitioner herein that without notice to the Plaintiff in O.S.No.311 of 2013 before filing the Suit in O.S.No.510 of 2015, the conduct of the Plaintiff in O.S.No.510 of 2015 who is the Defendant in O.S.No.311 of 2013 filed a Petition for rectifying FMB, is found unfair practice. If the cause of action of the Plaintiff in O.S.No.510 of 2015 is fair and bona-fide, he ought to have invoked this power by filing Petition for appointment of Advocate Commissioner as Defendant in O.S.No.311 of 2013. During the pendency of the Suit in O.S.No.311 of 2013, the Defendant ought to have filed a Petition for appointment of Advocate Commissioner to measure the Suit Property with the help of the Taluk Surveyor or Firka Surveyor and obtain the similar Order from the Court. He had not done so. He had taken the Surveyor of the property and measured the property by him behind the back of the Plaintiff who is enjoying the interim injunction. The Suit itself filed for bare injunction. While so, with the help of such report he had filed the Suit after measuring the property and after getting the FMB rectified as per his requirement. Therefore, it will not help, as rightly pointed out by the learned Counsel for the Petitioner herein who is the 8/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 Plaintiff in O.S.No.311 of 2013. Therefore, the Order of the learned District Munsif ignoring objection of the Petitioner herein as Respondent/Defendant ignoring the fact that already the Plaintiff in O.S.No.311 of 2013 enjoying the injunction with specific boundaries.
The attempt of the Respondent as Petitioner before the trial Court in filing a Suit after amending/altering the FMB is not fair, acceptable and reasonable. Therefore, the ruling cited by the learned Counsel for the Respondent who is the Plaintiff in O.S.No.510 of 2015 to establish that the Plaintiff had encroached the property by using the injunction, is found unacceptable and unreasonable. Having played mischief the Plaintiff in O.S.No.510 of 2015 cannot now seek to appoint Advocate Commissioner to find out the encroachment after altering the FMB without notice to the Plaintiff in O.S.No.311 of 2013. Therefore, the ruling cited by the learned Counsel for the Petitioner who is the Plaintiff in O.S.No.510 of 2015 is rejected. The Order passed by the learned District Munsif in I.A.No.654 of 2015 in O.S.No..510 of 2015 is set aside. The Court in its own power during the course of trial can summon the Revenue Officials along with FMB before carrying out rectification by the Defendant in O.S.No.311 of 2013 who is the Plaintiff in 9/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 O.S.No.510 of 2015 and arrive at a conclusion who had encroached. The Court can dispose of both the Suits within a period of six months from the date of receipt of a copy of this Order.
10/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 With the above direction, this Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.
22.09.2022 dh Index: Yes/No Internet: Yes/No Speaking Order/Non-speaking Order To
1. The learned Additional District Munsif, Alandur.
2. The Section Officer, V.R.Section, High Court, Madras.
11/12 https://www.mhc.tn.gov.in/judis CRP.(PD).No.874 of 2020 SATHI KUMAR SUKUMARA KURUP, J.
dh Pre-delivery Order made in CRP(PD).No.874 of 2020 22.09.2022 12/12 https://www.mhc.tn.gov.in/judis