The Madras High Court in the interest of justice held that the High Court cannot be used to collect material evidence by appointing an Advocate Commissioner to prove the plaintiff's case.
The Civil Revision Petition challenging the dismissal of the application for appointment of an Advocate Commissioner is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:15.07.2014
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
CRP (PD) No.2033 of 2014 and M.P.No.1 of 2014
K.A.Subramanian
.. Petitioner
Vs.
Dr.A.L.Shajahan .. Respondent
Prayer : Revision Petition is filed under Article 227 of the Constitution of India, against the order and decreetal order dated 09.01.2014 passed in I.A.No.17294 of 2013 in O.S.No.5628 of 2013 on the file of the learned VII Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr.S.V.Jayaraman
ORDER
The Revision Petitioner herein has come forward with this Civil Revision Petition challenging the order dated 09.01.2014 passed in I.A.No.17294 of 2013 in O.S.No.5628 of 2013 on the file of the learned VII Assistant Judge, City Civil Court, Chennai, dismissing the application filed under Order 26 Rule 9 of C.P.C.
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“(i) for a permanent injunction restraining the Defendant, his men, agents or anybody acting under him or claiming through him from in any manner changing and altering the structure by removing the walls and putting up additional construction in the terrace and/or in the Ground of the 'schedule mentioned property' except with the planning permission from the appropriate authorities.”
The defendant/respondent herein filed a written statement and contested the suit. During the pendency of the suit, he filed an application in I.A.No.17294 of 2013 in O.S.No.5628 of 2013 under Order 26 Rule 9 of C.P.C. for appointment of an Advocate Commissioner to inspect the suit property stating that the defendant/respondent herein had purchased the property in the year 2010 and after purchase, he re-modeled the kicthen, Toilet and Bathroom, by removing the slab and walls and further, the entire structure is made up by way of brickwork without columns, pillars and beams and removal of walls and shelves from the walls from its original place, which leads to collapse the entire structure, therefore, to elucidate the matter in dispute and to find out the truth and establish the fact that the Defendant has demolished the walls and made structural alterations, it is necessary to appoint an Advocate Commissioner to inspect the suit schedule property. The trial Court, after considering the arguments, has dismissed the application. Aggrieved against the order of dismissal, the plaintiff/revision petitioner herein has filed the present Civil Revision Petition.
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Consequently, connected miscellaneous petition is closed.
15.07.2014
ogy
To
The VII Assistant City Civil Court, Chennai.
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R.MALA,J.
ogy
CRP (PD) No.2033 of 2014
15.07.2014
2 issues framed by the court
Whether an Advocate Commissioner can be appointed to collect material evidence in a civil suit.
Whether the plaintiff discharged the burden of proving structural alterations through other means.
2 provisions across 2 enactments
K.A. Subramanian
Dr. A.L. Shajahan
R. Mala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
