Dismissed

K.Hariram v. P.Boopathy

Madras HC15 Mar 2017CRP/109/2017

Case brief

AI extract

What is this about?

The High Court dismissed civil revision petitions filed by plaintiffs challenging orders rejecting their application to scrap an Advocate Commissioner's report. The court held the trial court acted correctly as no sufficient case was made out to discard the existing report.

What did the court decide?

Civil Revision Petitions dismissed; trial Court directed to decide suit within six months after parties file objections to Commissioner's report.

K.Hariram Vs P.Boopathy — Civil Procedure and Limitation | Madras HC (2017)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

DATED : 15.03.2017

¶4

CORAM

¶5

THE HONOURABLE THIRU JUSTICE M. DURAISWAMY

¶6

C.R.P.(PD)Nos.109 & 110 of 2017 and C.M.P.No. 521 of 2017 in CRP(PD)No.109 of 2017

¶7

K.hariram 2. H.thilaga ... Petitioners

¶8

¶9

P.Boopathy ... Respondent

¶10

Civil Revision Petitions filed under section 227 of C.P.C. against the fair and decreetal orders dated 15.09.2016 made in I.A.No.329 & 330 of 2016 in I.A.No.550 of 2012 in I.A.No.735 of 2010 in O.S.No.442 of 2010 on the file of the Additional District Munsif, Alandur.

¶11

For Petitioners : Mr.S.Y.Masood

¶12

For Respondent : Mr.B.L.Jayakandan

¶13

C O M M O N O R D E R

¶14

Heard the learned counsel for the petitioners and the learned counsel for the respondent.

¶15

¶16

Challenging the fair and final orders dated 15.09.2016 passed in I.A.Nos.329 & 330 of 2016 in I.A.No.550 of 2012 in I.A.No.735 of 2010 in O.S.No.442 of 2010 on the file of the Additional District Munsif, Alandur, the plaintiffs have filed the above Civil Revisions.

¶17

The plaintiffs filed the suit in O.S.No.442 of 2010 for permanent injunction. The defendant filed his written statement and is contesting the suit. In the said suit, the plaintiffs have filed an application in I.A.No.735 of 2010 seeking for appointment of an Advocate Commissioner. The trial Court allowed the application and appointed an Advocate Commissioner and the Advocate Commissioner also filed his report before the trial Court. Subsequently, the defendant filed an application in I.A.No.550 of 2012 in I.A.No.735 of 2010 to reissue the warrant of Commission to the Advocate Commissioner for reinspecting the suit property. After contest, the trial Court allowed the application and warrant of Commission was reissued to the Advocate Commissioner, pursuant to which, the Advocate Commissioner inspected the property again and filed his report. Thereafter, the plaintiffs filed application in I.A.No.329 of 2016 in I.A.No.550 of 2012 in I.A.No.735 of 2010 to scrap the Advocate Commissioner's report and I.A.No.330 of 2016 to appoint a fresh Advocate Commissioner to inspect the suit

¶18

¶19

property. The applications filed by the plaintiffs were opposed by the defendant stating that the plaintiffs have not made out a case for scrapping the Advocate Commissioner's report.

¶20

On a perusal of the affidavits filed in support of the applications, it could be seen that the plaintiffs have averred that the Advocate Commissioner has filed a conflicting report on the second occasion and therefore, the Advocate Commissioner's report has to be scrapped.

¶21

The plaintiffs have not filed their objections to the Commissioner's report so far. In the affidavits, they contended that since the Advocate Commissioner has given a divergent finding in the second report, the same has to be scrapped and a new Commissioner has to be appointed for inspecting the suit property.

¶22

On a perusal of the averments made in the affidavits filed in support of the applications, I do not find any reason to scrap the report of the Advocate Commissioner. The trial Court, taking into consideration the case of both parties, rightly dismissed the applications filed by the plaintiffs and declined to scrap the report and to appoint another Advocate Commissioner to inspect the suit property.

¶23

¶24

The Judgment relied upon by the learned counsel for the petitioners in the case of Kasthurirangan vs. Commissioner, Arcot Municipality, Arcot, reported in (2013) 5 MLJ 310 , do not apply to the facts of the present case for the reason that this Court held in that case that the petitioner therein has not made out a ground for reissuance of warrant of Commission to the same Advocate Commissioner. In the case on hand, since the defendant has not made out a case for reissuance of warrant of Commission and since the Advocate Commissioner also reinspected the property and filed his report, the ratio laid down in the said Judgment is not applicable.

¶25

As already stated since the petitioners have not established their case for scrapping the Commissioner's report, the trial Court has rightly dismissed the applications. I do not find any error or irregularity in the orders passed by the trial Court. The Civil Revision Petitions are devoid of merits and the same are dismissed. The plaintiffs as well as the defendant are at liberty to file their objections to the Advocate Commissioner's report within two weeks from the date of receipt of a copy of this order. The trial Court is directed to decide the suit, after

¶26

¶27

taking into consideration the objections to be filed by the parties, within six months from the date of receipt of a copy of this order.

¶28

No costs. Connected miscellaneous petition is closed.

15.03.2017

Index: No

Note: Issue next week

¶33

¶34

Additional District Munsif, Alandur.

M. DURAISWAMY,J.,

CRP (PD) Nos.109 & 110 of 2017

¶39

15.03.2017

¶40

http://www.judis.nic.in

K.Hariram v. P.Boopathy

Case brief

What is this about?

What did the court decide?

K.Hariram v. P.Boopathy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

A.Balamurugan Vs Subasankareswari

J.Mariayyah, Vs Elizebeth Rani

S.Ramesh Vs Karthiga

Gayathri Vs S. Vignesh

Sankar Marimuthu Vs v.Vettilvel

T.Muthukumar Vs Kalpana