Allowed

K.Devaraj v. E.Thanikachalam

Madras HC21 Sept 2022CRP/1171/2020

Case brief

AI extract

What is this about?

This court allowed a civil revision petition challenging an order allowing an Advocate Commissioner appointment. The court held the appointment unnecessary as encroachment is a factual issue for trial proof, overturning the lower court's direction.

What did the court decide?

The order appointing an Advocate Commissioner in I.A.No.213 of 2019 is set aside. The suit is to be disposed of expeditiously.

K.Devaraj Vs E.Thanikachalam — Contract and Commercial Disputes | Madras HC (2022)

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C.R.P(PD)No.1171 of 2020

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 21.09.2022

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Coram

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The Honourable Mrs.Justice R.HEMALATHA

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C.R.P(PD) No.1171 of 2020

K.Devaraj

...Petitioner

Versus

E.Thanikachalam ...Respondent

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This Civil Revision Petition is filed under Article 227 of the Constitution of India praying to set aside the order and decreetal order dated 03.02.2020 made in I.A.No.213 of 2019 in O.S.No.11 of 2019 on the file of District Munsif cum Judicial Magistrate Thirukalukundram, Chengalpattu District.

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For Petitioner : Mr.K.Vishwajeeth Yogeshwara for Mr.G.Krishnamurthy For Respondent : Mr.N.Sivaprakash

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ORDER

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This Civil Revision Petition has been filed against the order passed

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by the learned District Munsif-cum-Judicial Magistrate, Thirukalukundram, Chengalpattu District in I.A.No.213 of 2019 in O.S.No.11 of 2019 dated 03.02.2020.

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https://www.mhc.tn.gov.in/judis

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C.R.P(PD)No.1171 of 2020

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The revision petitioner is the plaintiff in the suit O.S.No.11 of 2019 on the file of the District Munsif-cum-Judicial Magistrate Court, Thirukalukundram, Chengalpattu District. He filed the suit for the following reliefs:

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(a) for a permanent injunction restraining the 1^st defendant from

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interfering with his peaceful possession and enjoyment of the suit property

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(b) for a permanent injunction restraining the 1^st defendant from

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alienating the suit property in favour of the 5^th defendant.

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31.07.2003, executed by him in favour of one Late Durai registered as Document No.173/2003 on the file of SRO, Thirukazhukundram as null and void.

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The defendants in the suit filed their written statements. During

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the pendency of the suit, the respondent/4^th defendant filed an Interlocutory Application in I.A.No.213 of 2019 under Order XXVI Rule 9 r/w. Section 151 of C.P.C, to appoint an Advocate Commissioner to note down the physical features of the suit property and to measure the same with the help

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https://www.mhc.tn.gov.in/judis

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C.R.P(PD)No.1171 of 2020

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of a Taluk Surveyor. The revision petitioner/plaintiff filed his counter affidavit. After full contest, the learned District Munsif-cum-Judicial Magistrate, Thirukalukundram, Chengalpattu District allowed the aforesaid application and appointed an Advocate Commissioner. Aggrieved over the same, the present Civil Revision Petition has been filed.

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Mr.K.Vishwajeeth Yogeshwara, learned counsel appearing for the revision petitioner contended that the revision petitioner/plaintiff has filed the suit challenging the general power of attorney dated 31.07.2003 and for a permanent injunction restraining the 1^st defendant from interfering with his peaceful possession and enjoyment of the suit property and alienating the same. In such circumstances, the appointment of Advocate Commissioner is not necessary in the instant case is concerned.

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On the contrary, Mr.N.Sivaprakash, learned counsel appearing for the respondent/4^th defendant contended that the revision petitioner/plaintiff has actually encroached upon the suit property and hence, the respondent/4^th defendant had reserved his right to seek for recovery of possession from the

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https://www.mhc.tn.gov.in/judis

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C.R.P(PD)No.1171 of 2020

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revision petitioner/plaintiff by filing a counter claim in the suit. According to the respondent/4^th defendant, the trial Court had rightly appointed an Advocate Commissioner and allowed the application.

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In the orders in I.A.No.213 of 2019, the learned trial Judge has

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observed as under:

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“Here it is a specific case of 4^th defendant that there was a encroachment from the plaintiff side over his purchase property from plaintiff's power agent namely Durai. Admittedly as rightly pointed out by learned counsel for plaintiff/respondent the subject sale deed and power of attorney deed was under challenge this Court can ascertain that if there was any encroachment over the suit property. Moreover, the petitioner also pleaded in his affidavit that he is reserving his right to raise a counter claim if they exactly comes to knowledge of encroachment. Hence it is just and necessary to ascertain such fact and it can also decide well with the suit. So that it can avoid multiplicity of future proceedings.”

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The above observation of the trial Court cannot be sustained for

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the simple reason that the Advocate Commissioner cannot give a finding as to whether the revision petitioner/plaintiff had made an encroachment over

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https://www.mhc.tn.gov.in/judis

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C.R.P(PD)No.1171 of 2020

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the suit property. The revision petitioner/plaintiff had filed the suit challenging the General power of attorney and also, he had alleged that he is in possession of the property. It is for the revision petitioner/plaintiff to prove his pleadings in the plaint. The appointment of an Advocate Commissioner in the instant case is not necessary. Therefore, the orders passed by the learned trial Judge is liable to be set aside.

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In the result, this Civil Revision Petition is allowed and the order passed by the learned District Munsif-cum-Judicial Magistrate, Thirukalukundram, Chengalpattu District in I.A.No.213 of 2019 in O.S.No.11 of 2019 dated 03.02.2020 is set aside. No costs.

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Since the suit O.S.No.11 of 2019 is of the year 2019, the learned

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District Munsif-cum-Judicial Magistrate, Thirukalukundram, Chengalpattu District is directed to dispose of the same as expeditiously as possible.

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21.09.2022

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mrr Index : Yes/No Speaking Order (or) Non-Speaking Order

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https://www.mhc.tn.gov.in/judis

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C.R.P(PD)No.1171 of 2020

R.HEMALATHA, J.

mrr

The District Munsif cum Judicial Magistrate, Thirukalukundram, Chengalpattu District.

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C.R.P(PD)No.1171 of 2020

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21.09.2022

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https://www.mhc.tn.gov.in/judis

K.Devaraj v. E.Thanikachalam

Case brief

What is this about?

What did the court decide?

K.Devaraj v. E.Thanikachalam

Case brief

What is this about?

What did the court decide?

What the court decided

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