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2008 DIGILAW 2597 (MAD)

Murugesan v. Jamuna Rani

2008-07-23

S.RAJESWARAN

body2008
Judgment :- 1. This Civil Revision Petition has been filed by the petitioner to set aside the order dated 27.02.2008 passed in I.A.No.18 of 2008 in O.S.No.92 of 1997 on the file of the Sub Court, Chidambaram. 2. The defendant in O.S.No.92 of 1997 is the revision petitioner before this Court. The suit in O.S.No.92 of 1997 has been filed by the respondent/plaintiff for Specific Performance of the sale agreement dated 110. 1995 by directing the defendant to execute the registered sale deed in respect of the suit property. Written statement has been filed by the petitioner/defendant and the suit is being contested. Pending suit an application in I.A.No.18 of 2008 has been filed by the petitioner/defendant to appoint an Advocate Commissioner to inspect the suit property with the assistance of a qualified engineer, to measure the suit property, the physical features, the nature of construction, the value of the building and the site and to file a detailed report and plan. The said application was resisted by the respondent/plaintiff by filing a counter. The trial Court by order dated 27.02.2008 dismissed the application. Aggrieved by the same, the above civil revision petition has been filed. 3. I have heard the learned counsel appearing for the petitioner and I have also gone through the documents filed in support of his submission. 4. The learned counsel for the petitioner submits that the suit has been filed by the respondent/plaintiff for Specific Performance of the sale agreement dated 110. 1995 by directing the defendant to execute the registered sale deed in respect of the suit property. Written statement has been filed by the petitioner/defendant stating that the transaction was only a loan transaction and there was no agreement entered into between the respondent/plaintiff and the petitioner/respondent to sell this property. Moreover, this agreement cannot be enforced. While so, in order to prove his case that there was no possibility of an agreement said to have been entered into between the respondent/plaintiff and the petitioner/defendant for a meagre sum of Rs.3,00,000/- for a plump property, the revision petitioner filed an I.A. to prove the market value of the property. Though the petition was resisted by the respondent/plaintiff, the trial Court by order dated 27.02.2008 dismissed the application without appreciating the facts and law. Though the petition was resisted by the respondent/plaintiff, the trial Court by order dated 27.02.2008 dismissed the application without appreciating the facts and law. Therefore, he submits that the order passed by the court below suffers from irregularity and infirmity warranting interference under Article 227 of the Constitution of India. 5. I am unable to accept the submissions made by the learned counsel for the petitioner. Admittedly, the suit is one for Specific performance of the sale agreement filed by the respondent/plaintiff to execute the sale agreement dated 110. 1995. It is the petitioners case that such valuable property would never be sold for a meagre amount as shown in the alleged sale agreement. Therefore, in order to prove his case and disprove the case of the plaintiff, an advocate commissioner was required to be appointed. 6. In my opinion, the trial Court has rightly considered the application and rejected the same. Admittedly the suit is for specific performance of the sale agreement dated 110. 1995 and in such a suit, what is to be decided is whether there is a valid sale agreement whether the same has been acted upon, whether the plaintiff was always ready and willing to perform his part of the agreement and whether the plaintiff is entitled to the specific relief as prayed for. That being so, there is no necessity at all to appoint an Advocate Commissioner to determine the value of the property. Therefore, the trial Court has rightly dismissed the I.A.No.18 of 2008 and I do not find any illegality warranting interference by this Court. 7. However, considering the fact that the suit is of the year 1997, I direct the trial Court to dispose of the suit in O.S.No.92 of 1997 on merits and in accordance with law within a month from the date of receipt of a copy of this order. 8. In the result, the civil revision petition is dismissed. No costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.