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Madras High Court · body

2008 DIGILAW 4165 (MAD)

V. Thanikachalam v. D. Balakrishnan

2008-11-12

M.VENUGOPAL

body2008
Judgment :- The civil revision petitioner/petitioner/plaintiff has filed the present revision petition as against the order dated 30.04.2008 in I.A.No.896 of 2007 in O.S.No.136 of 2006 passed by the District Munsif, Cuddalore in dismissing the application filed by the revision petitioner/petitioner/plaintiff under Order 26 Rule 9 Section 10-A read with Section 151 of Civil Procedure Code. 2. The trial Court, while passing orders in I.A.No.896 of 2007, has inter alia observed that the application for appointment of Commissioner has been projected at the stage when the suit has been posted for arguments and resultantly, has dismissed the application. 3. Admittedly, the revision petitioner/plaintiff has filed suit praying for a judgment and decree being passed against the respondent/defendant for a sum of Rs.36,000/-together with interest at 12% for the balance amount of Rs.35,000/- from the date of plaint till date of decree and the interest for the balance amount of Rs.35,000/- from the date of decree till the date of realization. 4. The main substance of the case of the revision petitioner/ plaintiff is that the revision petitioner has restricted his claim and also claiming the balance amount as per the written agreement i.e. a sum of Rs.35,000/- only, even though he is entitled to claim a sum of Rs.55,000/- as per the oral and written agreement and for left materials valued for a sum of Rs.1000/-. 5. The respondent/defendant has filed a detailed written statement inter alia taking a plea that already the revision petitioner/ plaintiff has received an excess amount and that the respondent/ defendant is not liable to pay the balance amount of Rs.35,000/-to the revision petitioner/petitioner/plaintiff and in fact the revision petitioner/petitioner/plaintiff is liable to refund the excess sum of Rs.20,000/- received by him and further that the respondent/ defendant has completed the construction at his cost and that the revision petitioner/plaintiff has never come forward to complete the construction and that the suit is vexatious and therefore, prays for dismissal of the suit with exemplary costs. 6. 6. In I.A.No.896 of 2007 filed by the revision petitioner/ petitioner/plaintiff has prayed for an appointment of a PWD Engineer having Office at Kurinjipadi and direct him to inspect the suit building and note down the stage of the building and the physical features of the building and also to note down the length of the used Iron Rods in the basement, lindal and roof level whichever is possible and direct him to take photograph of the same and file a comprehensive report and plan etc. 7. On perusal of the order passed by the trial Court, it is quite evident that the I.A.No.896 of 2007 has been projected by the revision petitioner/plaintiff at the fag end of the proceedings and that too when the matter has been posted for arguments and in that view of the matter, this Court is of the considered view that the application I.A.No.896 of 2007 praying for an appointment of P.W.D Engineer is only a luxurious one and not a necessity and in that view of the matter, the revision fails and the same is hereby dismissed. 8. In fine, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.896 of 2007 is confirmed. Since the matter is posted for arguments, the trial Court is directed to dispose of the main suit within a period of two weeks from the date of receipt of communication of this order and to report compliance to this Court without fail. Consequently, connected miscellaneous petition is also dismissed.