Allowed Civil Revision Petition against order dismissing application to reissue warrant. Held trial court wrong to dismiss as belated due to subsequent counterclaim framing issue.
Order of Trial Court set aside; I.A. No. 442 of 2018 allowed; Trial Court directed to reissue warrant to same Commissioner for measuring portions PP1 and DP1.
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.
C.R.P(PD)No. 2150 of 2018 and C.M.P.No. 13380 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P(PD)No. 2150 of 2018
and
C.M.P.No. 13380 of 2018
1.Padma @ Padmavathi
2.A.Balamurugan
3.Rathinam ...Petitioners
Vs.
Athanappan (died)
1.Thangavel
2.Karuppayal
3.Senthilkumar ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 07.07.2018 made in I.A.No. 442 of 2018 in I.A.No. 108 of 2013 in O.S.No. 41 of 2013 on the file of the Principal District Munsif Court, Erode.
For Petitioners : Mr.A.Mukunth For Respondents : Mr.N.Manokaran
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O R D E R
The defendants 2 to 4 in O.S.No. 41 of 2013 are on revision.
Challenge in this revision is to the order of the Trial Court dismissing the
application filed by the defendants 2 to 4 to reissue the warrant to the same Advocate Commissioner to measure the suit property shown as DP1 and find out the actual extent of encroachment made by the plaintiffs.
that the plaintiffs have encroached upon a portion of their property shown as DP1 which is situate immediately on the East of the plaintiffs' property shown as PP1 in the plaint plan. The defendants also prayed for a decree for removal of encroachment. Soon thereafter the defendants filed an application for reissuing the warrant to the commissioner to measure the
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C.R.P(PD)No. 2150 of 2018 and C.M.P.No. 13380 of 2018
portions marked as PP1 and DP1 in the plaint plan and find out the actual encrochment made by the plaintiffs. This application was opposed as belated. The Trial Court accepted the defence and dismissed the application.
and Mr.N.Manokaran, learned counsel for the respondents.
of the suit pathway shown as ABCDEFGHIJ in the plaint plan. The first Commissioner did not go into the question of encroachment by the plaintiffs over the portion shown as DP1 in the plaint plan. It is only after the filing
of the counter claim, the additional issue was framed regarding the relief of
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C.R.P(PD)No. 2150 of 2018 and C.M.P.No. 13380 of 2018
mandatory injunction sought for, in the counter claim, by the defendants. Therefore, the defendants/petitioners herein could not have had an opportunity to raise the issue regarding encroachment when the Commissioner visited the property in the year 2013. The ground on which
the learned Trial Judge was dismissed the application is that it is belated.
issue relating to encroachment was framed only in the year 2018.
Therefore, the defendants have filed an instant application at the earliest point of time. I do not think, the Trial Court was right in concluding that the
application is belated.
hence this Civil Revision Petition is allowed, the order of the Trial Court is
set aside, I.A.No. 442 of 2018 will stand allowed. The Trial Court is directed to reissue the warrant to the same Commissioner requiring him to measure the portions shown as PP1 and DP1 in the plaint plan and note down the exact nature of the alleged encroachments and file a report. The
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C.R.P(PD)No. 2150 of 2018 and C.M.P.No. 13380 of 2018
Court shall proceed to dispose of the suit upon receipt of the report of the Commissioner. Consequently, connected miscellaneous petition is closed.
No costs.
17.12.2020
kkn
Internet:Yes
Index:No
Speaking
To:
The Principal District Munsif Court,
Erode.
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C.R.P(PD)No. 2150 of 2018 and C.M.P.No. 13380 of 2018
R.SUBRAMANIAN, J.
KKN
C.R.P(PD)No. 2150 of 2018
and
C.M.P.No. 13380 of 2018
17.12.2020
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3 issues framed by the court
Whether the application to reissue warrant to commissioner for measuring encroached portions was belated.
Whether the trial court order dismissing the application for re-measurement of disputed property must be interfered with.
Whether the additional issue of encroachment framed in 2018 justified seeking fresh measurement in 2018.
Padma @ Padmavathi
A. Balamurugan
Rathinam
Thangavel
Karuppayal
Senthilkumar
R. Subramanian
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
