Revision petition against an order appointing an Advocate Commissioner to ascertain encroachments. The High Court held no prejudice was caused to petitioners advertising possession and dismissed the revision. The Trial Court was directed to conclude the suit in six months.
Trial Court directed to dispose of the suit within six months of receipt of this order; no costs.
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.
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.07.2019
C O R A M
THE HON'BLE Mr.JUSTICE ABDUL QUDDHOSE
C.R.P.(PD) No.3594 of 2014 &
M.P.No.1 of 2014
1.Rajendran
2.Karunanidhi
3.Selvaraj ... Petitioners
Vs.
1.Ramasamy
2.Kanagavalli ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and final order of the District Munsif Court, Nagapattinam, dated 7.8.2014 made in I.A.No.397/2014 in OS 240/2013.
For Petitioners ... Mr.S.Sounthar
For Respondents ... No appearance
ORDER
The instant civil revision petition has been filed challenging the
order dated 07.08.2014 passed by the learned District Munsif Court, Nagapattinam in I.A.No.397 of 2014 in O.S.No.240 of 2013.
2
Brief facts leading to the filing of the instant revision under Article
227 of the Constitution of India :
3
I.A.No.397 of 2014 denying the allegations contained in the affidavit filed
in support of I.A.No.397 of 2014. In the counter affidavit, the petitioners
have stated that an advocate commissioner cannot be appointed to collect evidence and also to establish who is in physical possession of the suit schedule properties. By order dated 07.08.2014, the Trial Court allowed I.A.No.397 of 2014 and appointed an Advocate Commissioner to find out whether there is any encroachment in the suit A schedule and B schedule properties and granted the relief as sought for by the respondents in I.A.No.397 of 2014. Aggrieved by the order dated 07.08.2014 passed in I.A.No.397 of 2014, the instant civil revision petition has been filed by the defendants under Article 227 of the Constitution of India.
Submissions of the learned counsel:
4
Advocate Commissioner cannot be appointed to collect evidence. He drew the attention of this Court to the plaint averments in O.S.No.240 of 2013 wherein according to him, the respondents have categorically pleaded that they are in possession of the suit A schedule property and insofar as the suit B schedule property is concerned, the petitioners/defendants are in possession. This being the case, according to him, an Advocate Commissioner cannot be appointed in respect of the suit A schedule as well as the suit B schedule properties, as admittedly even according to the respondents, the petitioners are in possession of the suit B schedule property. According to him, it is for the respondents to establish by documentary and oral evidence that they are the absolute owner of the suit A and B schedule properties and an Advocate Commissioner cannot be appointed to collect evidence on behalf of the respondents/plaintiffs.
Discussion:
5
ground that the suit filed by the respondents for injunction and recovery
of possession and if an Advocate Commissioner is appointed to measure
the suit properties and to find out whether there is encroachments or not, it will be useful for the Court to decide the issues in hand. The Trial Court has also considered the contention of the respondents that the suit
is barred by res judicata and it is hit by Order II Rule 2 CPC. But
however, the Trial Court has left out those issues open for adjudication
after trial.
caused to the petitioners, if an Advocate Commissioner is appointed. The Advocate Commissioner has been appointed only to find out if there are encroachments in the suit A schedule and B schedule properties. Since the petitioners have taken a categorical stated in their written statement that they are in possession of both the suit A schedule and B schedule properties, the reliefs granted in I.A.No.397 of 2014 will not cause prejudice to the interest of the petitioners.
6
passed by the Trial Court. However, considering the long pendency of the suit, a direction will have to be given to the Trial Court to dispose of the suit within a time frame as fixed by this Court.
Conclusion: 9. In the result, the civil revision petition is dismissed and the Trial Court is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed. 19.07.2019 nl Index : Yes / No Internet: Yes/No Speaking/Non-Speaking orders
7
To
The District Munsif Court, Nagapattinam
8
ABDUL QUDDHOSE. J,
nl
CRP (PD) No.3594 of 2014
19.07.2019
3 issues framed by the court
Whether appointment of an Advocate Commissioner to find encroachments in the suit properties under Order XXVI Rule 9 CPC causes prejudice to the petitioners.
Whether the impugned order of the Trial Court allowing the appointment is infirm.
Whether to direct the Trial Court to dispose of the pending suit within a fixed timeframe.
2 provisions across 2 enactments
Rajendran
Karunanidhi
Selvaraj
Ramasamy
Kanagavalli
Abdul Quddhoose
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
