Allowed

K.Ganesamoorthy v. S.Murugan

Madras HC16 Nov 2023CRP/1243/2023

Case brief

AI extract

What is this about?

A civil revision petition filed by the plaintiff challenging the dismissal of an advocate commissioner's appointment application. The High Court allowed the petition, setting aside the trial court's order and directing the appointment of the commissioner within two weeks.

What did the court decide?

The impugned order dismissing the application for the appointment of an Advocate Commissioner was set aside, and the application was allowed with directions to appoint the commissioner within two week

K.Ganesamoorthy Vs S.Murugan — Civil Procedure and Limitation | Madras HC (2023)

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CRP No.1243 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED :16.11.2023

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CORAM :

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THE HON'BLE MRS. JUSTICE T.V. THAMILSELVI

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Civil Revision Petition No.1243 of 2023

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and

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CMP.No.8428 of 2023

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K.Ganesamoorthy ... Petitioner

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Versus

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1.S.Muruganantham 2.Padmanaban 3.The Commissioner, Tiruppur City Municipal Corporation, Tiruppur. ... Respondents

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Civil Revision Petition filed Under Section 227 of Constitution of India, praying to set aside the order passed in I.A.No.598 of 2022 in O.S.No.217 of 2011 dated 15.12.2022 by the learned District Munsif Court, Tiruppur.

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For Petitioner : Mr. J.Franklin

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O R D E R

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The petitioner has filed this petition to set aside the order passed in

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I.A.No.598 of 2022 in O.S.No.217 of 2011 dated 15.12.2022 by the learned District Munsif Court, Tiruppur.

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

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CRP No.1243 of 2023

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Heard, Mr. J.Franklin, the learned counsel for the petitioner and perused the materials available on record.

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Before the trial Court, the petitioner / plaintiff has filed a suit for mandatory injunction and other consequential reliefs. On pending of the suit the plaintiff has filed an I.A.No.589 of 2022 in O.S.No.217 of 2011, under Order XXVI Rule 9 of CPC, to appoint Advocate Commissioner to note down the physical features of the suit mentioned property. The said application was dismissed by the learned trial Judge holding that to drag on the proceedings the application has been filed by the petitioner. Aggrieved the same the petitioner has filed this Civil Revision Petition.

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The learned counsel for the revision petitioner submitted that the cause of action arose, on 15.04.1971 when the one Subramaniam Chettiar was purchased the property, on 15.09.1980 when the one T.R.Ponnusamy was purchased the property from the Subramaniam Chettiar, on 24.08.2001 when the plaintiff had purchased the property, on 31.08.2010 when the Commissioner Tirupur Municipal Corporation had issued a Survey field Register, on 05.12.1955 when the defendants vendor purchased the property ,

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

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CRP No.1243 of 2023

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on 01.03.2011 when the plaintiff and other publics were approached the 3^rd defendant to remove the encroachment and all other subsequent dates all are situated at Chandra Colony, Thottipalayam Village, Tirupur Town and Taluk, and declaring that the 20 feet width in North Sourt, 400 feet in east and west i.e., CDEF as mentioned in the common road in S.F.No.531/2, there is no

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other alternative relief the plaintiff has come forward to file this suit for declaration and mandatory injunction against the defendants 1 & 2. Thereafter, the petitioner has filed an application for appointment of Advocate Commissioner to note down the physical features of the suit property.

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The learned counsel for the respondents raised strong objection to appoint Advocate Commissioner, to measure the suit property. He further submitted that the learned trial Judge rightly concluded and dismissed the I.A.No.598 of 2022 which needs no interference and prays to dismiss this Civil Revision petition.

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On seeing the facts that the suit property is path way and to prove

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the same the petitioner wants to appoint Advocate Commissioner to note down the physical features, to that extent, he come forward with the application. Without considering the fact, the learned trial Judge erroneously

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

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CRP No.1243 of 2023

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dismissed the application, therefore this Court is inclined to set aside the finding rendered by the learned trial Judge in I.A.No.598 of 2022 in O.S.No.217 of 2011 and the I.A is allowed.

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However, the learned trial Judge is directed to appoint the Advocate Commissioner within a period of two weeks from the date of receipt of a copy of this order and to produce the report within a period of 4 weeks from the date of appointment and thereafter the trial Judge is directed to proceed with the matter as per manner known to law.

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Accordingly, this Civil Revision petition is allowed. Consequently,

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connected miscellaneous petition is closed. There shall be no order as to costs.

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16.11.2023

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Index : Yes/No Speaking/Non Speaking order Neutral Citation:Yes/No

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rri

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

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CRP No.1243 of 2023

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The District Munsif, Tiruppur.

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2.The Section Officer,

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VR-Section, High Court of Madras.

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T.V.THAMILSELVI, J.

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

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CRP No.1243 of 2023

rri

Civil Revision Petition No.1243 of 2023 and CMP.No.8428 of 2023

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16.11.2023

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

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K.Ganesamoorthy v. S.Murugan

Case brief

What is this about?

What did the court decide?

K.Ganesamoorthy v. S.Murugan

Case brief

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What did the court decide?

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