Dismissed

Sarafunisha, v. Jeyakumar

Madras HC13 Oct 2011CRP(MD)/878/2011

Case brief

AI extract

What is this about?

The Madras High Court dismissed a civil revision petition challenging the District Court's order allowing amendment of a plaint under CPC Order VI Rule 17 based on an Advocate Commissioner's report. The High Court confirmed the lower court's decision to correct the property area in the suit.

What did the court decide?

Civil Revision Petition dismissed; order of District Court allowing amendment of plaint confirmed.

Sarafunisha, Vs Jeyakumar — Property and Title | Madras HC (2011)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 13.10.2011

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CORAM

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THE HONOURABLE MR.JUSTICE A.SELVAM

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CIVIL REVISION PETITION (PD)(MD)No.878 of 2011

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and MISCELLANEOUS PETITION No.1 of 2011

Sarafunisha

.. Petitioner

Vs.

1.Jeyakumar

2.Appukuttan .. Respondents

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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 11.02.2011 passed in Interlocutory Application No.499 of 2010 in Original Suit No.47 of 2008 by the District Court, Kanyakumari at Nagercoil. For Petitioner : Mr.T.Lajapathi Roy

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ORDER

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The order dated 11.02.2011 passed in Interlocutory Application No.499 of 2010 in Original Suit No.47 of 2008 by the District Court, Kanyakumari at Nagercoil is being challenged in the present Civil Revision Petition.

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The respondents herein as plaintiffs have instituted Original Suit No.47 of 2008 on the file of the Court below praying to pass a decree of specific performance, wherein the present revision petitioner has been shown as sole defendant. During pendency of the same, an Advocate Commissioner has been appointed and he filed his report and plan and on the basis of the Commissioner's report and plan, the present petition has been filed in Interlocutory Application No.499 of 2010 under Order VI, Rule 17 of the Code of Civil Procedure, 1908 praying to permit the petitioners therein to make amendment in the plaint as stated in the petition. The Court below has allowed the same. Against the order passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the respondent/ defendant as revision petitioner.

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Considering the nature of the order passed in Interlocutory Application No.499 of 2010 in Original Suit No.47 of 2008 by the Court below, notice need not be sent to the respondents https://hcservices.ecourts.gov.in/hcservices/ and this Civil Revision Petition is disposed of on merits at the stage of admission.

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The learned counsel appearing for the revision petitioner has vehemently contended that in the suit survey number 1 acre 33½ cents of land is available and the present petition has been filed only on the basis of the Commissioner's report and plan

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and the Commissioner has exceeded his limit and under the said circumstances the present petition is not legally maintainable and the Court below without considering the objections raised on the side of the revision petitioner has erroneously allowed the petition and therefore the order passed by the Court below is liable to be interfered with.

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For considering the submission made on the side of the revision petitioner, the Court has to look into the extent of property mentioned in the plaint filed in Original Suit No.47 of 2008. In the plaint, it has been clearly stated that even though the suit sale agreement has come into existence in respect of 1 acre 33½ cents of land, but on ground 1 acre 27¾ cents of land is available and the same has been shown as suit property. As stated earlier, during pendency of Original Suit No.47 of 2008, an Advocate Commissioner has been appointed and he has been directed to measure the suit property and accordingly he has measured it and filed his report and plan, wherein it has been clearly stated that the suit property is admeasuring 1 acre 28 cents and 920 square links. Considering the fact that the Advocate Commissioner has measured the suit property and also considering that the suit sale agreement has come into existence as per the averments made in the plaint in respect of 1 acre 33½ cents of land, the relevant amendment sought for in the present petition can easily be granted.

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The Court below after considering the available evidence on record has rightly allowed the petition filed in Interlocutory Application No.499 of 2010. In view of the discussion made earlier, this Court has not found any error in the order passed by the Court below and further by way of allowing the petition filed in Interlocutory Application No.499 of 2010, no prejudice would be caused to the 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 and the order passed in Interlocutory Application No.499 of 2010 in Original Suit No.47 of 2008 by the District Court, Kanyakumari at Nagercoil is confirmed. Consequently, connected Miscellaneous Petition is dismissed.

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Sd/-

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Deputy Registrar (Writs)

/True Copy/

Assistant Registrar

The District Judge, Kanyakumari District at Nagercoil.

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+1cc to Mr.T.Lajapathi Roy, Advocate Sr.No.35753

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smn

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ssk/08.11.2011 /3c-2p/https://hcservices.ecourts.gov.in/hcservices/

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C.R.P(PD)(MD)No.878 of 2011 and M.P(MD)No.1 of 2011

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13.10.2011

Sarafunisha, v. Jeyakumar

Case brief

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Sarafunisha, v. Jeyakumar

Case brief

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