Madras High Court
A.Palaniappan vs K.Nallasamy on 23 April, 2008
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2008
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
C.R.P.(P.D.) No.3389 of 2007 &
M.P.No.1 of 2007
A.Palaniappan ... Petitioner
Vs.
1. K.Nallasamy
2. A.Ramasamy
3. R.Manickka Sundaram
4. A.Vijayakumar
5. V.K.Rakkia Gounder
6. R.Vivekanandan
7. B.Kandasamy ... Respondents
Civil Revision Petition has been filed against the order and decreetal order dated 18.06.2007 passed in I.A.No.394 of 2007 in O.S.No.1241 of 2004 on the file of the Principal District Munsif Court, Erode.
For petitioner : Mr.V.Raghavachari
For R1 to R5 and R7 : Mr.A.K.Kumarasamy
For R6 : Mr.R.Vivekanandan
O R D E R
This Civil Revision is directed against the order dated 18.06.2007 in I.A.No.394 of 2007 in O.S.No.1241 of 2004 on the file of the Principal District Munsif, Erode.
2. The petitioner has filed a suit in O.S.No.1241 of 2004 before the trial Judge against the respondents praying for a decree of declaration of title and consequential injunction and for other incidental reliefs. The said suit was contested by the respondents by filing written statement wherein, they have disputed the very title of the petitioner and denied the other contentions with respect to the right of the petitioner pertaining to the suit property.
3. At the instance of the first respondent, Advocate Commissioner was appointed and he has filed his report and plan.
4. While the matter stood thus, the petitioner has filed an application in I.A.No.394 of 2007 to remit the warrant to the very same Commissioner to file an additional report and plan in the light of the objections filed by him and with the help of the official surveyor. The said application was opposed by the respondents on the ground that already there is a report of the Advocate Commissioner issued at the instance of the respondents and such being the case, the present application filed after a long period of two years is clearly misconceived.
5. The learned trial Judge, on consideration of the rival pleadings as well as the submissions with regard to necessity for such a fresh report, however, was pleased to reject the prayer and aggrieved by the said order, the petitioner has preferred the present revision.
6. I have heard Mr.V.Raghavachari, learned counsel for the petitioner and Mr.A.K.Kumarasamy, learned counsel for respondents 1, 2 to 5 and 7 and Mr.R.Vivekanandan for the sixth respondent.
7. It is true that at an earlier point of time, an Advocate Commissioner was appointed by the trial Court at the instance of the respondents. In pursuance of the warrant issued to the Advocate Commissioner, he had inspected the property and submitted the report. After a period of about two years, the petitioner has come up with the present application to remit the report to the Advocate Commissioner and to file a fresh report in the light of the objections filed by the petitioner to the earlier Commissioner's report. The learned trial Judge observed that the details which are sought to be collected by way of remitting the report to the Advocate Commissioner could be elicited by examining the Advocate Commissioner and such being the case, the application to remit the warrant to the Advocate Commissioner with a prayer to file a fresh report is clearly unwarranted in the facts and circumstances of the case. However, the fact remains that the petitioner has preferred objection to the report of the Advocate Commissioner and it was his case before the trial Court that the plan drawn by the Advocate Commissioner was not in accordance with the actual measurement of the property and in fact, the inspection was conducted in the absence of the petitioner. The prayer in the application is only to remit the warrant to the very same Advocate Commissioner for the purpose of filing a fresh report after measuring the property with the help of a surveyor, but of course, taking into consideration the objection filed by the present petitioner. All the procedures are man made and the ultimate goal is to do complete justice. The petitioner being the plaintiff in the suit, the burden is on him to prove the plaint averments and for the purpose of projecting his case, the petitioner has sought the report of an Advocate Commissioner by remitting the warrant to the very same Commissioner and as such I do not find any reason to deny the relief to the petitioner. Therefore, I am inclined to allow this Civil Revision Petition by setting aside the order dated 18.06.2007 in I.A.No.394 of 2007.
8. The Lower Court is directed to remit the warrant to the very same Advocate Commissioner to inspect the property once again by fixing an outer limit of three months from the date of remitting the warrant to submit the report.
9. In the result, the Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
23.04.2008 gms To Principal District Munsif Court, Erode K.K.SASIDHARAN, J.
gms C.R.P.(P.D.) No.3389 of 2007 23.04.2008