Dismissed

C.Petchikumar v. S.Chandra @ Jeyalakshmi

Madras HC11 Oct 2011CRP(MD)/1981/2011

Case brief

AI extract

What is this about?

The Madurai Bench of Madras High Court dismissed a civil revision petition challenging a lower court order refusing appointment of an Advocate Commissioner. The High Court held that since an interim injunction under Order XXXIX was already granted in the original suit, a separate application under Order XXVI Rule 9 was not maintainable.

What did the court decide?

Civil Revision Petition and connected Miscellaneous Petition dismissed; order of Additional District Munsif Court confirmed; liberty to enforce existing interim injunction order granted.

C.Petchikumar Vs S.Chandra @ Jeyalakshmi — Landlord and Tenant | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.10.2011

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CORAM

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THE HONOURABLE MR.JUSTICE A.SELVAM

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CIVIL REVISION PETITION No.1981 of 2011

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and

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MISCELLANEOUS PETITION No.1 of 2011

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C.Petchikumar .. Petitioner/Plaintiff

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Vs.

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1.S.Chandra @ Jeyalakshmi 2.V.P.M.Balasubramaniam 3.Rajasekar @ Victor 4.Lawrence .. Respondents/Defendants

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Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 18.08.2010 passed in Interlocutory Application No.1911 of 2009 in Original Suit No.359 of 2008 by the Additional District Munsif Court, Srivilliputhur.

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For Petitioner : Mr.C.T.Perumal ORDER

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The order dated 18.08.2010 passed in Interlocutory Application No.1911 of 2009 in Original Suit No.359 of 2008 by the Additional District Munsif Court, Srivilliputhur is being challenged in the present Civil Revision Petition.

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The revision petitioner herein as plaintiff has instituted Original Suit No.359 of 2008 on the file of the Court below for getting a decree of perpetual injunction, wherein the present respondents have been shown as defendants. During pendency of the same, the revision petitioner as petitioner has filed Interlocutory Application No.1911 of 2009 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose of noting down the physical features of the suit property and the Court below has dismissed the same. Against the dismissal order passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the petitioner/ plaintiff as revision petitioner.

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Considering the nature of the relief sought for in Original Suit No.359 of 2008 and also considering the nature of the relief sought for in the present petition and the order https://hcservices.ecourts.gov.in/hcservices/ passed thereon, notice need not be sent to the respondents and this Civil Revision Petition is disposed of on merits at the stage of admission on the basis of the contention putforth on the side of the revision petitioner.

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The learned counsel appearing for the revision petitioner has contended that the revision petitioner/petitioner/plaintiff has been enjoying the suit property as a tenant and since the respondents herein have been making arrangements to disturb his peaceful possession and enjoyment, Original Suit No.359 of 2008 has been instituted and now the respondents/ defendants have been making arrangements to demolish the suit property gradually and in order to note down the physical features, the present petition has been filed in Interlocutory Application No.1911 of 2009, but the Court below without considering the real object under which the present petition has been filed, has erroneously dismissed the same and therefore the dismissal order passed by the Court below is liable to be set aside.

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As stated supra, Original Suit No.359 of 2008 has been instituted for getting the relief of perpetual injunction. In the plaint, it has been specifically averred that the revision petitioner/petitioner/plaintiff has been enjoying the suit property as a tenant. During pendency of the same, the present petition has been filed in Interlocutory Application No.1911 of 2009 under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose of noting down the physical features of the suit property. The Court below has dismissed the same stating that since in Original Suit No.359 of 2008 relief of perpetual injunction has been sought for, the present petition is not factually and legally maintainable.

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As stated earlier, Original Suit No.359 of 2008 has been instituted for the relief of perpetual injunction. The only grievance expressed on the side of the revision petitioner/petitioner/plaintiff is that the respondents herein have demolished the suit property gradually and only for the purpose of noting down the physical features of the suit property, the present petition has been filed.

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During the course of argument, it is learnt that the revision petitioner has already filed an application in Interlocutory Application No.1400 of 2009 under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908, wherein he has obtained an interim injunction. Considering the fact that in Interlocutory Application No.1400 of 2009, an interim injunction has been passed in favour of the revision petitioner, the revision petitioner can very well invoke relevant provision of law if there is any violation on the part of the respondents and the revision petitioner has not availed it and further since Original Suit No.359 of 2008 has been instituted for the relief of permanent injunction, the relief sought for in the present https://hcservices.ecourts.gov.in/hcservices/ petition cannot be granted. The Court below after considering the nature of the relief sought for in Original Suit No.359 of 2008, has rightly dismissed the petition.

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In view of the discussion made earlier, this Court has not found any force in the contention urged on the side of the

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revision petitioner and altogether the present Civil Revision Petition deserves to be dismissed.

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In fine, this Civil Revision Petition deserves dismissal and accordingly is dismissed without costs at the stage of admission and the order passed in Interlocutory Application No.1911 of 2009 in Original Suit No.359 of 2008 by the Additional District Munsif Court, Srivilliputhur is confirmed. However the revision petitioner is at liberty to enforce the order passed in Interlocutory Application No.1400 of 2009. Consequently, connected Miscellaneous Petition is dismissed.

Sd/-

Assistant Registrar

/True Copy/

Sub-Assistant Registrar

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The Additional District Munsif Court, Srivilliputhur

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+One Cc to Mr.C.T.Perumal, Advocate, SR.No.35144

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smn rl/3c – 28.10.2011

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C.R.P(PD)(MD)No.1981 of 2011

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and M.P(MD)No.1 of 2011

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https://hcservices.ecourts.gov.in/hcservices/

C.Petchikumar v. S.Chandra @ Jeyalakshmi

Case brief

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What did the court decide?

C.Petchikumar v. S.Chandra @ Jeyalakshmi

Case brief

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