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2005 DIGILAW 1123 (MAD)

Baskaran v. Mahalakshmi

2005-07-20

R.BANUMATHI

body2005
Judgment :- C.R.P.No.741 of 2004:- This Revision is preferred against the Order of the District Munsif, Maduranthakam, made in I.A.No. 204 of 2002 in O.S.No. 215 of 1996, dated 29-4-2002, allowing the petition filed under Or.6 R.17 C.P.C., thereby, allowing the amendment of 'A' schedule property regarding East-West measurement as 131.5 ft. instead of 88 1/2 ft. C.R.P.Nos. 742 and 743 of 2004:- These Revisions are preferred against the orders of the District Munsif, Maduranthakam, made in I.A.Nos. 893 and 308 of 2003 in O.S.Nos. 215 of 1996, dated 8-1-2004 and 20-8-2003 respectively, allowing the Petitions filed under Or.26 R.9 C.P.C. appointing fresh Advocate Commissioner. The Defendant is the Revision Petitioner in all the above three Revision Petitions. 2. Common points arise for determination in all the above three Revisions and hence, all these Revisions were taken up together. The relevant facts for disposal of these Revision Petitions could briefly be stated thus :- a) O.S.No.215 of 1996:- The suit property relates to 'A' and 'B' schedule properties, relating to the pathway – Narasam on the Southern Side. The case of the Plaintiff is that the Plaintiff has purchased 'A' schedule property from one K.V.Narayanan and another by a Registered Sale Deed dated 4-2-1980. The Plaintiff has purchased 2/3rd share on the Northern Side from Narayanan and Dhamodharan. The Plaintiff has also entered into an oral agreement with Natarajan to purchase his 1/3rd share and paid Rs.2,000/- as advance. But thereafter, the Defendant had secretly purchased the property from the said Natarajan. The Plaintiff agreed to take 2/3rd share on the Northern Side and the Defendant agreed to take his 1/3rd share on the Southern Side. The Plaintiff demolished the house on the Southern Side and had built a new terraced house. The Defendant is a powerful man with influence. Under the guise of putting up a new shop, the Defendant had removed the old shop on 1-2-1996, which was prevented by the Plaintiff. The Plaintiff is not able to reach her vacant portion, which is in the middle of the 'A' schedule property. The Defendant is a powerful man with influence. Under the guise of putting up a new shop, the Defendant had removed the old shop on 1-2-1996, which was prevented by the Plaintiff. The Plaintiff is not able to reach her vacant portion, which is in the middle of the 'A' schedule property. Since, a cloud has been cast on the Plaintiff title to 'B' and 'C' schedule properties, the Plaintiff has filed the suit for :- i.declaration of her title to 'B' schedule property and for possession, demolishing the illegal construction; and ii.to declare the Plaintiff's title to 'C' schedule property and for permanent injunction restraining the Defendant and his men from in any way interfering with the Plaintiff's peaceful possession and enjoyment of 'C' schedule property. b) Denying the allegations in the plaint, the Defendant has filed the written statement contending that the suit property originally belonged to one Vedhachala Mudaliar. He had three sons, by name, Natarajan, Narayanan and Dhamodharan. For the entire property the Narasam was on the South extreme. As per the custom, the eldest son Natarajan got the property on the Southern most portion. Next North to Natarajan's portions was given to Narayanan and further North was given to Dhamodharan. The Plaintiff has purchased the shares of Dhamodharan and Narayanan and Defendant has purchased the share from the said Natarajan. The Narasam was on the extreme South of the property purchased by the Defendant. In between the property of Natarajan and Dhamodharan, the Plaintiff wants to create a Narasam, which he is not entitled. Even now, the Narasam is in existence and it is in the Southern Side of the property of the Defendant. Suppressing the material facts, the Plaintiff has filed the vexatious suit. The Plaintiff is not entitled to any discretionary relief and hence, the Plaintiff is not entitled to any relief. The Written Statement was filed on 30-01-1997. The Amendment Application in I.A.No. 204 of 2002 was allowed on 29-04-2002. Thereafter, the Defendant has also filed Additional Written Statement on 12-10-2002. c) I.A.No.204/2002:- The Plaintiff has filed this Application for amendment of the plaint. According to the Plaintiff, she has purchased 2/3rd share, out of 0.13 acres. At the time of purchase East-West measurement has not been properly measured and hence, in the Sale Deed, it is wrongly described as 88 ½ feet, where as the correct measurement is 131.5 ft. c) I.A.No.204/2002:- The Plaintiff has filed this Application for amendment of the plaint. According to the Plaintiff, she has purchased 2/3rd share, out of 0.13 acres. At the time of purchase East-West measurement has not been properly measured and hence, in the Sale Deed, it is wrongly described as 88 ½ feet, where as the correct measurement is 131.5 ft. There is no dispute regarding East to West measurement. The extent mentioned in the Sale Deed is correct; but the measurement alone is wrong. Hence, the Plaintiff has filed this Amendment Application to amend the East-West measurement as 131.5 ft., instead of 88 1/2 ft. d) The Amendment Application was strongly objected by the Respondent/Defendant contending that the proposed amendment would change the character of the suit. It was alleged that earlier it was the definite case of the Plaintiff that she is in possession and enjoyment of the suit property and she sought for declaration of her title and permanent injunction. Now, the Plaintiff seeks to amend the plaint, after P.W.1 had been cross-examined, to fill up the lacuna. P.W.2 Commissioner was also examined and only to get over the lacuna, the Plaintiff has filed the Application for amendment and the same is not maintainable. e) Upon consideration of the contention of both the parties, the learned District Munsif, allowed the Application finding that changing the East-West measurement as 131.5 ft. instead of 88 1/2 ft. would not in any way change the character of the suit. It was further held that for complete and effective adjudication the amendment is essential. f) I.A.No. 308 of 2003:- Earlier, as per the Order in I.A.No.197 of 2001 an Advocate Commissioner was appointed to measure the suit property. The Commissioner had visited the property and has filed his report alleging that the measurement given by the Commissioner in the earlier Report is incorrect. The Plaintiff has filed I.A.No. 308 of 2003 for appointment of an Advocate Commissioner to revisit the suit property and to measure the same with the help of the surveyor. The Defendant resisted that Application. g) Upon hearing both the parties, the learned District Munsif, appointed one V.R.Srinivasan as Advocate Commissioner to visit the spot and to measure the same with the help of the surveyor. Later, it was brought to the notice of the Court that the said Advocate Commissioner has already entered appearance for the Plaintiff. The Defendant resisted that Application. g) Upon hearing both the parties, the learned District Munsif, appointed one V.R.Srinivasan as Advocate Commissioner to visit the spot and to measure the same with the help of the surveyor. Later, it was brought to the notice of the Court that the said Advocate Commissioner has already entered appearance for the Plaintiff. Under such circumstances, the Court has directed the said Advocate Commissioner to return the warrant. The Petition in I.A.No. 308 of 2003 was ordered to be closed, giving liberty to the Plaintiff to file a fresh petition for appointment of Advocate Commissioner. h) I.A.No. 893 of 2003:- Pursuant to the liberty granted in I.A.No. 308 of 2003 and alleging that the measurement in the earlier Report is incorrect, the Plaintiff has filed this Application for appointment of an Advocate Commissioner to revisit the suit property and to measure the same with the help of the surveyor. The Defendant has raised his objection for this Application also. i) Upon consideration of the contention of both the parties, the learned District Munsif, has appointed one Mr.M.B.Srinivasan, as Commissioner to visit the spot and to submit his report with plan. 3) Aggrieved over the orders in I.A.Nos. 893 and 308 of 2003, the Defendant has preferred the C.R.P.Nos. 742 and 743 of 2004. Assailing the impugned order of amendment, the learned counsel for the Revision Petitioner has submitted that the amendment sought for after the trial was commenced and after the examination of the Advocate Commissioner as P.W.2 cannot be ordered. Assailing the appointment of Advocate Commissioner in I.A.No. 893 of 2003, the learned counsel has submitted that the Applications in I.A.Nos. 308 and 893 of 2003 were filed merely to gather the evidence, which cannot be permitted. Pointing out that there cannot be belated appointment of Advocate Commissioner, that too, a fresh Commissioner, the learned counsel for the Revision Petitioner prays to reverse the order of appointment of the Advocate Commissioner in I.A.No.893/2003. 4) Submitting that nearly two years after the impugned order (in I.A.No. 204 of 2002), the Revision Petition has been belatedly filed, the learned counsel for the Respondent/Plaintiff has drawn the attention of the Court to the acquiescence of the Defendant in the amendment sought for. It is submitted that after the amendment, amended plaint copy was filed and the Defendant has also filed Additional Written Statement. It is submitted that after the amendment, amended plaint copy was filed and the Defendant has also filed Additional Written Statement. The learned counsel for the Respondent has further submitted that in view of the delay and latches the Revision Petition in C.R.P.No.741 of 2004, is not maintainable. Drawing the attention of the Court to the order in I.A.No.308 of 2003, wherein, the Court has given liberty to the Plaintiff to file a fresh Application for appointment of Advocate Commissioner and the Plaintiff has rightly filed I.A.No. 893 of 2003, the learned counsel submits that the order of appointment of the Advocate Commissioner does not suffer from any infirmity warranting interference. 5) Upon consideration of the contentions of both the parties, the impugned orders and other materials on record, the following points arise for consideration in these Revision Petitions. i.Whether the impugned orders directing amendment of the plaint 'A' schedule, amending the East-West measurement and the order of appointment of Advocate Commissioner in I.A.No. 893 of 2003 suffers from jurisdictional error warranting interference, invoking the power under Article 227 of the Constitution of India; and ii.Whether the High Court could interfere in the Revision filed nearly two years after the impugned order (in I.A.No.204/2002). 6. The plaint as it was originally filed in 'A' schedule property East-West measures 88 ½ feet. By the proposed amendment, 'A' schedule East-West measurement is amended as 131.5 ft. The Plaintiff bases her claim on the basis of the Sale Deed dated 4-2-1980, under which, she has purchased the suit property from the sons of one Vedhachala Mudaliar. By a perusal of the xerox copy of the Registered Sale Deed, it is seen that under the Sale Deed, the Plaintiff is said to have purchased:- East-West ... 88 ½ ft. North-South •Eastern Side ... 45 ft. •Western Side ... 40 ½ ft. Producing the copy of the document, the learned counsel for the Revision Petitioner has submitted that under the document,when the Plaintiff has purchased only 88 ½ on the East-West,the plaint schedule cannot be amended as 131.5 ft. 7. No doubt 'A' schedule property (in the unamended plaint) refers East-West measurement as 88.5 ft. After amendment East-West measures 131.5 ft. It is relevant to note that in the plaint declaration is sought for only regarding the 'B' schedule property, which is on the Southern side. 7. No doubt 'A' schedule property (in the unamended plaint) refers East-West measurement as 88.5 ft. After amendment East-West measures 131.5 ft. It is relevant to note that in the plaint declaration is sought for only regarding the 'B' schedule property, which is on the Southern side. 'B' schedule property is a small portion forming part of 'A' schedule property. Hence, the proposed amendment to the East-West measurement in 'A' schedule property does not substantially alter the nature of the suit. Since, the main dispute is relating to the pathway described as 'B' schedule, it is to be noted that no declaration is sought for regarding 'A' schedule property. Hence, there cannot be any serious objection regarding the amendment of 'A' schedule property. 8. The learned counsel for the Revision Petitioner has mainly contended that if no relief is sought for regarding 'A' schedule property, the question arises as to, why the East-West measurement of 'A' schedule property should be amended at all. 9. To appreciate this contention urged is to go into the merits of the amendment. At the initial stage, when the Court is considering the amendment, the merits of the amendment cannot be gone into. At the stage of allowing the amendment or otherwise, there cannot be a roving enquiry into the merits of the amendment. It would be too premature to confer any opinion as to the merits of the amendment. Earlier, I.A.No. 197/2001 was filed, on the basis of which, an Advocate Commissioner was appointed. The Commissioner has visited the suit locality on 4-8-2001 and filed his report on 13-8-2001. After the commencement of the trial, the Plaintiff examined herself as P.W.1. The Commissioner was examined as P.W.2 in the year 2001. Thereafter the Amendedment Application was filed in I.A.No. 204 of 2002. Contending that the Amendment was filed after the commencement of the trial and when the Plaintiff has not made out any genuine case for not filing the Amendment Application earlier, the learned counsel for the Revision Petitioner has contended that the trial Court was not right in allowing the Amendment filed at that belated stage. 10. This contention does not merit acceptance. It is to be noted that the Amendment Application in I.A.No. 204 of 2002 was filed on 18-2-2002. The counter of the Defendant was filed on 2-3-2002. 10. This contention does not merit acceptance. It is to be noted that the Amendment Application in I.A.No. 204 of 2002 was filed on 18-2-2002. The counter of the Defendant was filed on 2-3-2002. The impugned order in I.A.204/2002 was passed on 29-4-2002, allowing the Application for amendment. Thus, the entire proceedings for amendment is prior to the CPC (Amendment)2002, which came into force w.e.f. 1-7-2002. Invoking the proviso to or.6 R.17 C.P.C. The order in I.A.No.204 of 2002 cannot be assailed on the ground that the Amendment Application was filed after the commencement of the trial. 11. The delay and latches on the part of the Revision Petitioner in filing C.R.P.No.741 of 2004 is to be pointed out. As noted earlier, I.A.No. 204 of 2002 was filed on 18-2-2002 and the same was allowed on 29-4-2002. Thereafter, amended plaint was filed. The Defendants have also filed Additional Written Statement. For about two years, no Revision Petition was filed. Assailing the impugned order in I.A.No.204 of 2002, the Revision was filed nearly after two years on 30-3-2004. No reasonable explanation is forthcoming for such a delay in filing the Revision Petition. 12. The power under Article 227 of the Constitution of India is within the discretion of the Court. Though, there is no period of limitation prescribed for such Revision, it may be refused interalia on the ground of unreasonable delay, which is not explained by special circumstances. This is all the more so, where by the reason of the delay the position of the Plaintiff is changed, namely, the amended plaint was filed and the parties proceeded with the trial on the basis of the amended plaint. Though, there is no specific period of limitation, the High Court could refuse to exercise the extra-ordinary power under Article 227 of the Constitution of India, when the Revision Petition has been filed with an inordinate delay. There is no valid grounds for interfering with the impugned order made in I.A.No. 204 of 2002. 13. In I.A.No. 308 of 2003, one Mr.V.R.Srinivasan was appointed as Commissioner to visit the suit property and to measure the same with the help of the surveyor. Later, it was brought to the notice of the Court that the said Advocate Commissioner was already on record for the Plaintiff. 13. In I.A.No. 308 of 2003, one Mr.V.R.Srinivasan was appointed as Commissioner to visit the suit property and to measure the same with the help of the surveyor. Later, it was brought to the notice of the Court that the said Advocate Commissioner was already on record for the Plaintiff. Hence, by the order dated 20-8-2003, the learned District Munsif, has directed the Advocate Commissioner to return the Warrant. But, instead of appointing the earlier Advocate Commissioner, appointed in I.A.No.197 of 2001 (or) appointing another Advocate Commissioner, the petition in I.A.No.308 of 2003 was ordered to be closed, giving liberty to the plaintiff to file a fresh Commission Application. This approach of the trial Court is erroneous and cannot be endorsed with. The learned District Munsif ought not to have closed the Application. C.R.P.No. 742 of 2004 is preferred against the order in I.A.No. 308 of 2003. Though, the impugned order is dated 20-8-2003, no Revision was filed immediately thereafter. The Revision had been filed only on 30-3-2004. In the absence of any reasons explaining the delay, and in view of the order, closing the petition directing the Plaintiff to file a fresh Application, this Court finds no reason calling for interference in the impugned order made in I.A.No.308/2003. 14. Pursuant to the permission granted in I.A.No. 308 of 2003, the plaintiff has filed I.A.No.893 of 2003 seeking for appointment of fresh Advocate Commissioner. On that Application, one Mr.M.B.Srinivasan, was appointed as Commissioner to visit the spot and to submit the report with the plan. Earlier in I.A.No.197 of 2001 one Mr.K.S.Gopinath, is said to have been appointed as Advocate Commissioner. There is no reason as to, why the same Advocate Commissioner was not reappointed to visit the suit property and to measure the same with the help of the surveyor. Before appointing a fresh Advocate Commissioner, the court should have first considered, whether the First Commissioner's Report, is not satisfactory. In the impugned order, the learned District Munsif, has not recorded any reason as to how the Report is not satisfactory. 15. Under Or.26 R.10(3) C.P.C., adequate provision is made to safeguard the interest of the parties. If the Court is dissatisfied with the Report, the Court can direct the Commissioner to rectify the defect or deficiency taking into consideration the objections and the evidence let in, in that behalf and direct the Commissioner to file a Supplementary Report. 15. Under Or.26 R.10(3) C.P.C., adequate provision is made to safeguard the interest of the parties. If the Court is dissatisfied with the Report, the Court can direct the Commissioner to rectify the defect or deficiency taking into consideration the objections and the evidence let in, in that behalf and direct the Commissioner to file a Supplementary Report. As far as possible, the Commissioner, who has already visited the suit property should be directed to file a Supplementary Report. This view is fortified by the decision reported in VEEPPANATHAR @ KARUPPANNAN AND ANOTHER Vs. KALIAPPAN ( 2000 (1) L.W. 893 ). The Second Commissioner cannot be appointed, unless there are allegations against the previous Commissioner that he has acted partially. In the absence of any such allegations, the learned District Munsif, was not right in appointing a fresh Advocate Commissioner. Under such circumstances, the order made in I.A.No. 893 of 2003, appointing one M.B.Srinivasan, is to be modified. The learned District Munsif, Madurantagam, is to be directed to reissue Commission Warrant to the same Advocate Commissioner to Mr.K.S.Gopinath, to visit the suit property and to measure the same with the help of the surveyor and to submit his report along with the survey plan. 16. C.R.P.Nos. 741 and 743 of 2004:- For the foregoing reasons, the order of the District Munsif, Madurantakam, made in I.A.Nos.204 of 2002 and 308 of 2003 in O.S.No. 215 of 1996, dated 29-04-2002 and 20-08-2003 respectively, are confirmed and the above Revision Petitions are dismissed. Consequently, the connected C.M.P.No. 7183 of 2004 in C.R.P.No.741 of 2004 is also dismissed. 17. C.R.P.No. 742/2004:- The Order of the District Munsif, Madurantakam, made in I.A.No.893 of 2003 in O.S.No. 215 of 1996, dated 08-01-2004, is modified and the above Revision Petition is partly allowed, accordingly. Consequently, the connected C.M.P.No. 7184 of 2004 is closed. The learned District Munsif, Madurantakam, is directed to reissue the Commission Warrant to the same Advocate Commissioner to Mr.K.S.Gopinath (who was the Commissioner in I.A.No.197 of 2001) directing him to visit the suit property and to measure the same with the help of the surveyor and to submit his report with a plan drawn to the scale. The trial Court is directed to fix the remuneration payable to the Advocate Commissioner. The trial Court is directed to recall the Warrant issued along with the remuneration paid in person to the Advocate Commissioner Mr.M.B.Srinivasan. The trial Court is directed to fix the remuneration payable to the Advocate Commissioner. The trial Court is directed to recall the Warrant issued along with the remuneration paid in person to the Advocate Commissioner Mr.M.B.Srinivasan. When the Report of the Advocate Commissioner is filed, the trial Court is directed to expedite the trial and dispose of the suit expeditiously, in accordance with law. In the circumstances of the case, there is no order as to costs in all the above three Revision Petitions.