Dismissed

V.Moni v. the Assistant Executive

Madras HC20 Jan 2014CRP(MD)/25/2014

Case brief

AI extract

What is this about?

The Madurai Bench of Madras High Court dismissed a Civil Revision Petition challenging the dismissal of an application for appointment of an Advocate Commissioner. The Court held the application was belated and only an attempt to protract the issue in a suit for declaration and injunction.

What did the court decide?

The Civil Revision Petition and connected Miscellaneous Petition were dismissed with no costs.

V.Moni Vs the Assistant Executive — Property and Title | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.01.2014 CORAM

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THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(PD)(MD)No.25 of 2014 and M.P(MD)No.1 of 2014

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V.Moni .. Petitioner/Plaintiff

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Vs.

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1.The Assistant Executive Engineer, PWD, Boothapandy, Thovalai Taluk, Kanyakumari District.

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2.The District Collector of Kanyakumari District at Nagercoil, Nagercoil Village,

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Agasteeswaram Taluk, Kanyakumari District. .. 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 11.09.2013 passed in Interlocutory Application No.129 of 2013 in Original Suit No.14 of 2009 by the learned First Additional Subordinate Judge, Nagercoil.

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For Petitioner : Mr.C.Kishore

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ORDER

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The plaintiff is before this Court, seeking to set aside the order of dismissal passed in the application filed by him to appoint an Advocate Commissioner to note down the physical features, namely, nature of the property, tank and age of the tress and ascertain the real facts. The trial Court dismissed the said application as belatedly. The said order is being challenged before this Court.

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2.Heard Mr.C.Kishore, learned counsel appearing for the revision petitioner.

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3.A perusal of the records would show that the suit was filed as early as on 19.01.2009 and is for declaration and injunction in respect of 36 Ares. The trial Court noted the fact that the trial commenced on 20.02.2012 and the evidence was

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closed on 20.12.2012 and thereafter the respondent's side evidence commenced on 18.01.2013 and closed on 20.07.2013. From 06.03.2013 onwards, the matter is being posted only for arguments. At that stage only, the petitioner filed I.A.Nos.84, 85 and 86 of 2013 for marking https://hcservices.ecourts.gov.in/hcservices/ Ex.A.10 and the same were allowed and thereafter it was posted for arguments. At that stage, on 12.04.2013, the present application for

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appointment of Advocate Commissioner has been filed. As rightly observed by the trial Court, it is belated and only to protract the issue. Moreover the suit is only for declaration and injunction and not for any possession. It is the duty of the petitioner to prove his case that he is entitled for declaration and for injunction. He cannot file an application for appointment of Advocate Commissioner to note down the physical features and in that guise he cannot collect evidence with regard to possession. Moreover as noted above, the application is a belated one. Therefore there is no occasion for this Court to take a different view as that of the trial Court. The Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is dismissed.

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Sd/-

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Assistant Registrar(Crl.Side)

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/True Copy/

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Sub Assistant Registrar

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The First Additional Subordinate Judge, Nagercoil.

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+1cc to Mr. C.Kishore Advocate Sr.No.3618 smn AA/28.01.2014/2p-3c/

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ORDER MADE IN C.R.P(PD)(MD)No.25 of 2014 and M.P(MD)No.1 of 2014 20.01.2014

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

V.Moni v. the Assistant Executive

Case brief

What is this about?

What did the court decide?

V.Moni v. the Assistant Executive

Case brief

What is this about?

What did the court decide?

What the court decided

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