Madras High Court
Mr. D. Kuttiyappan, S/O. Dhanapal And ... vs Meenakshiammal Polytechnic Unit Of ... on 17 June, 2005
Equivalent citations: 2005(4)CTC676, (2005)4MLJ592
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Civil Revision Petition arises out of the order dated 19.07.2004 passed by the District Munsif-cum-Judicial Magistrate, Uthiramerur in I.A. No. 127 of 2004 in O.S. No. 59 of 1999, dismissing the application under Order XXIV Rule 9 C.P.C filed for Appointment of Advocate Commissioner. Defendants are the Revision Petitioners.
2. Facts necessitated for disposal of this Revision could briefly be stated:-
Plaintiff - Meenakshiammal Polytechnic Unit of M/s.Meenakshiammal Trust has filed O.S. No. 1180 of 1993 on the file of the District Munsif Court, Kancheepuram. Later the suit was transferred to District Munsif Court, Uthiramerur and re-numbered as O.S. No. 59 of 1999. The Suit Property relates to S. No. 383/3A - 3.17.5 H of Perunkuzhi Village, Uthiramerur Taluk. Case of the Plaintiff is that the Plaintiff Trust had purchased the Suit Property in S. No. 383/3A under the Sale Deed dated 05.09.1984 from one Parthasarathi Battachariyar for valid consideration. The said Parthasarathi had obtained the property from his Mother - Sudamani Ammal, who purchased the same under Sale Deed dated 10.07.1942. Since the date of purchase, the Plaintiff Trust is in absolute possession and enjoyment of the Suit Property by paying kist. Patta and other Revenue Records stand in the name of the Plaintiff. While so, in or about 1988, the Defendants have encroached a portion of the Suit Property and have put up thatched huts, tiled houses and also terraced constructions inspite of the Plaintiff's protest. The Plaintiff has been requesting the Defendants to vacate and hand over vacant possession of the Suit Property. Since the Defendants have not vacated the suit property, the Plaintiff issued Legal Notice on 20.03.1991 calling upon the Defendants to vacate and hand over vacant possession and also to remove the super structure. The Defendants issued Reply Notice contending false allegations. Hence, the Plaintiff is constrained to file the Suit for declaration of its Title to the Suit Property and for Permanent Injunction, restraining the Defendants from in any way further encroaching or putting up construction in the Suit Property.
3. Defendants 4, 7, 11 and 12 have filed the separate Written Statement denying the averments in the Plaint. Case of the Defendants is that Pattankulam Village is situated in Natham S. No. 383/1 and that Village is situated on the way to Chenglepet from Uthiramerur. The Defendants have been in occupation of the Property in S. No. 383/3F, which is Tharisu Poromboke lands. The Defendants have put up construction and they are using the same for residential purpose and some of the Defendants are using the lands as their Backyard. The Defendants never trespassed into the suit land in S. No. 383/3-A. They are only in possession of the land in S. No. 383/3F and 383/1, which is adjacent to the suit property jurisdiction. The Defendants have been in possession of S. No. 383/1 and 383/3F for long period and they have perfected their Title by adverse possession.
4. I.A. No. 127 of 2004:- The Defendants have filed this Application for Appointment of Advocate Commissioner to measure the Suit Property with the help of a qualified Surveyor. According to the Defendants, a Commissioner is to be appointed to note down the physical features and also to note down that they are in occupation of S. No. 383/1 to an extent of 45 cents. According to the Defendants, the Advocate Commissioner earlier appointed has not measured the entire suit property in the occupation of the Defendants and in the occupation of the Respondent / Plaintiff.
5. The Plaintiffs have filed the Counter Statement resisting the Application and pointing out number of Applications for Appointment of Commissioner earlier filed by the parties and the availability of number of Reports. The Application was resisted also on the ground that the Commissioner cannot be appointed to note the factum of possession.
6. Upon consideration of the contentions of both parties it was held that without setting aside the earlier reports, a New Commissioner cannot be appointed once again. The Trial Court has also pointed out that the suit is of the year 1993 and that the Application for Appointment of Commissioner to visit the Suit Property has been filed only to delay the trial proceedings.
7. Aggrieved over the order of dismissal of the Petition, the Defendants have preferred this Revision Petition.
8. When the Revision Petition came up for hearing, it was stated that the suit in O.S. No. 59 of 1999 was decree exparte on 05.11.2004. When the Suit is no more pending, nothing survives for consideration in this Revision. However, learned counsel for the Revision Petitioners submitted that steps had been taken for restoration of the suit. When it was pointed out that when the suit has been decreed exparte the propriety of the Impugned Order need not be gone into, learned counsel insisted that Revision is to be disposed of granting liberty to the Revision Petitioners to revive the Civil Revision Petition as and when the Suit is restored. Such a plea is against the provision of law. Such liberty cannot be granted anticipating setting aside the exparte decree. Hence, though the Suit has been decreed exparte, contentions of both the parties in this Revision Petition were heard, and Revision Petition disposed on merits.
9. Assailing the impugned order, learned counsel for the Revision Petitioners has drawn the attention of the Court to the earlier Commission Application filed in I.A. No. 463 of 1999 in which the Commissioner could not be appointed due to non-remittance of the remuneration and hence, I.A. No. 127 of 2004 only amounts to renewal of the earlier application and that there is no impediment in ordering Advocate Commissioner though earlier reports are available. Learned counsel for the Revision Petitioners further submitted that when the earlier reports are not comprehensive showing the exact measurement, appointment of Advocate Commissioner to measure the suit property with the help of qualified surveyor is very much essential and prays for setting aside the Impugned Order.
10. Tracing the number of Petitions filed for appointment of Commissioner, learned counsel for the Respondents submitted that in view of number of reports already available, there cannot be re-issuance of Commission. Learned counsel has further submitted that the Application was filed when P.W.1 was examined with a view to delay the trial proceedings. The application is also attacked on the ground that an Advocate Commissioner cannot be appointed to note down the factum of possession.
11. When the suit is of the year 1993, can there be an appointment of Advocate Commissioner for the third time and whether there is improper exercise of discretion in declining to appoint the Advocate Commissioner are the points that arise for consideration in this Revision.
12. Even at the outset, it is to be pointed out that the Application in I.A. No. 127 of 2004 is the fourth round of Petition filed for Appointment of Advocate Commissioner. Earlier, the Commissioners are appointed atleast three times and two reports are already available. The details of the Commissioners appointed is elaborated in the Counter Statement. To appreciate the conduct of the Defendants, it is necessary to briefly refer to them. Earlier in I.A. No. 1472 of 1993, one A.Gnanasambandam, Advocate was appointed as Advocate Commissioner on 15.10.1993 to inspect the suit property and he has filed his Report on 06.04.1994. The Petitioners/Defendants have raised objection and insisted for inspection of the suit property by another Advocate Commissioner. The Revision Petitioners / Defendants filed I.A. No. 985 of 1995 and on that application one K.S.Mageswaran, Advocate was appointed as Advocate Commissioner, who filed his Report on 17.03.1997. Thereafter, the Revision Petitioners / Defendants again filed I.A. No. 463 of 1999 seeking for Appointment of Advocate Commissioner and the Advocate was also appointed. But, he filed a Memo returning his remuneration stating that he has misplaced the Warrant. Thereafter, the Revision Petitioners / Defendants filed a Memo seeking Appointment of Advocate Commissioner from the Bar Association of Uthiramerur. One A.Karunanidhi was appointed as Advocate Commissioner, directing the Defendants to deposit remuneration of Rs. 750/- payable to the Commissioner on or before 31.12.2002, failing which the Petition shall stand dismissed. The Defendants did not deposit the remuneration as ordered and hence, I.A. No. 463 of 1999 was dismissed on 02.01.2003. The Suit was ripe for trial and evidence of P.W.1 was partly recorded. At that stage, the Defendants have filed I.A. No. 127 of 2004 for Appointment of Advocate Commissioner, stating that it is only revival of I.A. No. 463 of 1999. It is relevant to note that nowhere in the Affidavit, the Revision Petitioners / Defendants have referred to I.A. No. 463 of 1999,. except a vague reference of the Commissioner's Report already available in filing the Application for Appointment of Advocate Commissioner.
13. There seems to be no bonafide on the part of the Defendants. Only when the trial commenced and P.W.1 was partly examined, the Petition was filed which clearly shows the intention of the Defendants to delay the trial proceedings. The Defendants have sought for appointment of Advocate Commissioner to measure the property in Suit S. No. 383/3A as well as the disputed properties on the South of Tharisu land in S. No. 383/1, which is in the occupation of the Defendants to an extent of about 45 cents. In the affidavit, it is stated that only the Commissioner Report will prove their case that they are in possession and enjoyment of S. No. 383/3F which is adjacent to the suit property. It is well settled that a Commissioner cannot be appointed to note down the factum of possession or the enjoyment. The Defendants are not entitled to seek for the Appointment of Commissioner to note their possession.
14. Earlier, atleast two times, the Commissioners have been appointed. Unless the Court is dissatisfied with the earlier reports, another Commissioner cannot be issued. It is stated that the earlier reports are comprehensive covering all the aspects. When that being so, it would not be appropriate to issue another Commission. There cannot be indiscriminate appointment of more than one Commissioner merely for the sake of asking and that the Petitioner would bear the remuneration. If the Commissioner is so appointed repeatedly, it would lead to the unhealthy practice of making the application seeking for appointment of Commission till the party gets a favourable report. Such a course cannot be allowed.
15. The suit is of the year 1993. In the facts and circumstances of the case, the Defendants are not justified in seeking appointment of another Advocate Commissioner. No bonafide is made out by the Revision Petitioners. Taking note of the availability of the earlier Reports, learned District Munsif, Uthiramerur has rightly declined to appoint Advocate Commissioner. The impugned order does not suffer from any infirmity calling for interference. This Revision Petition is bereft of merits and is bound to fail.
16. Therefore, the order of the District Munsif-cum-Judicial Magistrate, Uthiramerur dated 19.07.2004 in I.A. No. 127 of 2004 in O.S. No. 59 of 1999 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P. No. 16447 of 2004 is closed.