The Court dismissed a Civil Revision Petition challenging the dismissal of an application to re-issuance a warrant for an Advocate Commissioner. It held that without scrapping the earlier report first, a re-warrant plea is not maintainable.
The Civil Revision Petition was dismissed and the Trial Court order was confirmed.
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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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.04.2018
CORAM:
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
C.R.P.(PD)(MD) No.770 of 2018 and C.M.P.(MD) No.3408 of 2018
6.Shanmugavel ... Petitioners/Petitioners/Plaintiffs
-vs-
Prayer : Civil Revision Petition filed under Article 227 of Constitution of India praying to allow the civil revision petition by setting aside the order passed in I.A.No.191 of 2017 in O.S.No.111 of 2013 dated 23.01.2018 on the file of the District Munsif Court-cum-Judicial Magistrate Court, Shencottah, and thus render justice.
For Petitioners : Mr.R.Mani Maran
O R D E R
The revision petitioners are the plaintiffs in O.S.No.111 of 2013 dated 23.01.2018 on the file of the District Munsif Court-cumJudicial Magistrate Court, Shencottah and in the suit, they sought for a declaration to declare the suit schedule walls as common walls and also for permanent injunction. During pendency of the suit, the plaintiffs / revision petitioners filed an application in I.A.No.191 of 2017 for re-issuance of warrant to the Advocate Commissioner to inspect the suit property and note down its measurements with the assistance of a Surveyor and the said application was dismissed by the Trial Court, stating that the Court will not solely rely upon the report of the Advocate Commissioner to arrive at a just decision in the final judgment and therefore, re-issuance of warrant or appointment of another Advocate Commissioner is unwarranted. https://hcservices.ecourts.gov.in/hcservices/ Challenging the said order, the petitioners are before this Court.
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application made by them in I.A.No.613 of 2013, an Advocate Commissioner was appointed to inspect the suit scheduled items and file a report and in the report, though it has been stated that the exact point in respect of survey number is not clear, the Advocate Commissioner himself has rendered a finding that the wall belongs to the defendants, showing as if the property was surveyed with the help of a Surveyor. It is the further case of the petitioners that the said report, besides being detrimental, will cause much prejudice to them, if a decree is passed based on the report.
6. In the result,
a) this civil revision petition is dismissed, thereby confirming the order passed in I.A.No.191 of 2017 in O.S.No.111 of https://hcservices.ecourts.gov.in/hcservices/ 2013 dated 23.01.2018 by the learned District Munsif-cum-Judicial Magistrate, Shencottah;
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b) the revision petitioners are at liberty to file an application for scrapping of the earlier Advocate Commissioner's report, if so required, within a period of two weeks from the date of receipt of a copy of this order and if any such application is filed, the Trial Court is directed to number the application, consider the same and pass suitable orders thereon on merits and in accordance with law within one month thereafter;
c) the Trial Court is further directed to dispose of the suit in O.S.No.111 of 2013 within a period of six months from the date of passing orders on the application, if filed by the defendant (within the stipulated period of time fixed by this Court), without giving any unnecessary adjournment to either parties and the parties shall also cooperate for early disposal of the suit within the specified period as indicated above.
No costs. Consequently, connected miscellaneous petition is closed.
Sd/-
Assistant Registrar (AS)
/True Copy/
Sub Assistant Registrar
To:
AR
TE/SV-MMS/SAR-3 : 14/06/2018 : 3P/5C
C.R.P.(PD)(MD) No.770 of 2018 19.04.2018
2 issues framed by the court
Whether the Trial Court was right in disallowing the re-issuance of warrant for the appointment of an Advocate Commissioner without scrapping the earlier report.
Whether the plaintiffs were entitled to challenge the order dismissing their application for re-issuance of warrant under Article 227.
2 provisions across 1 enactments
Mariyammal
Kuthalingam
Komu
Kumar
Kannan
Shanmugavel
M.V.MURALIDARAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
