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2009 DIGILAW 4664 (MAD)

G. J. Kumari Manju v. Sukumaran Nair

2009-11-03

R.S.RAMANATHAN

body2009
Judgment :- The revision petitioner/ defendant filed an application in I.A.No.100 of 2009 in O.S.No.9 of 2008 on the file of the Subordinate Court, Kuzhithurai to appoint a Commissioner to assess the market value of the suit property and note the physical features of the suit property and to state whether Kuzhithurai-Arukani High Way road runs on the southern side of the suit property. That application was dismissed by the lower court and hence, this revision petition is filed. 2. O.S.No.9 of 2008 on the file of the Subordinate Court, Kuzhithurai was filed by the plaintiff/ respondent herein for specific performance of an agreement of sale dated 2. 2006 executed by the revision petitioner/ defendant in his favour. The agreement of sale is a registered one. The defendant contended that the agreement of sale was not intended to be acted upon and he borrowed a sum of Rs.2,50,000/- from the plaintiff and for that he was asked to execute an agreement of sale and the properties are worth more than Rs.50 lakhs and therefore to ascertain the value of the property, the Advocate Commissioner has to be appointed and filed I.A.No.100 of 2009. This application was rightly dismissed by the lower court holding that in a suit for specific performance the value of the property and existence of the road can be ascertained by way of evidence and the case was posted for examination of the witnesses and at that stage this application was filed and hence this application is liable to be dismissed and dismissed the application. 3. The learned counsel for the petitioner Mr. M.Ramadhas relied upon the Judgements reported in 2003 (1) CTC, 321 (Special Tahsildar and Land Acquisition Officer, Nagercoil v. Daisy Morayin and 4 others) and 2002 (1) LW, 620 (V.Sreekantan and another v. The Revenue Divisional Officer,Padmanabhapuram, Kanyakumari District). His contention was that an Advocate Commissioner is necessary for estimating the value of the land. It is the contention of the learned counsel for the revision petitioner that the properties are worth more than 50 lakhs and therefore it would not have been agreed to be sold for a sum of Rs.2,50,000/- by the revision petitioner/defendant and to prove that the Advocate Commissioner has to be appointed to assess the value of the property. It is the contention of the learned counsel for the revision petitioner that the properties are worth more than 50 lakhs and therefore it would not have been agreed to be sold for a sum of Rs.2,50,000/- by the revision petitioner/defendant and to prove that the Advocate Commissioner has to be appointed to assess the value of the property. Admittedly, it is a suit for specific performance and the plaintiff relied upon the agreement of sale executed by the defendant. In this case, the execution of the sale deed is admitted, but the defence of the defendant is that for the purpose of borrowing a sum of Rs.2,50,000/- from the plaintiff, the plaintiff was forced to execuite the agreement of sale and it was not intended to be acted upon and the defendant never agreed to execute a sale deed in pursuance of the agreement of sale. These aspects can be decided only by letting in evidence during the trial and for this purpose an Advocate Commissioner cannot be appointed. Further, it is not the case of the defendant that the property was agreed to be sold for a higher amount but by practising fraud a lessor amount has been stated in the agreement and hence to assess the value of the property an Advocate Commissioner has to be appointed. In this case, it is the definite stand of the defendant that the agreement of sale was executed only for the purpose of borrowing a sum of Rs.2,50,000/-and it was not intended to be acted upon and he is not bound to execute the sale deed. Therefore, the Advocate Commissioner is not at all necessary to prove the issues involved in this case. Further, as per the Judgements cited by the learned counsel for the revision petitioner, an Advocate Commissioner was appointed in those cases where the value of the land has to be ascertained for awarding compensation in the matter of land acquisition proceedings. Therefore, in such circumstances, this Courts have held that in land acquisition proceedings value has to be ascertained and for that purpose the Advocate Commissioner can be appointed. In this case, the agreement itself is disputed by the defendant on the ground that it was not intended to be acted upon. Hence, in this case, there is no need to appoint an Advocate Commissioner. 4. The learned counsel for the respondent Mr. In this case, the agreement itself is disputed by the defendant on the ground that it was not intended to be acted upon. Hence, in this case, there is no need to appoint an Advocate Commissioner. 4. The learned counsel for the respondent Mr. V.M. Balamohan referred the Judgement reported in 2009 (2) MLJ, 769, wherein this court has categorically held that in a suit for specific performance of a sale agreement, the suit is to be decided on the issues, i.e., whether the sale agreement is validly executed and the plaintiff is ready and willing to perform his part of the contract. That being so, the application taken out by the petitioner/ defendant to value the property is not relevant and germane to the issues to be decided in those suits and the application is not maintainable. The above said Judgement is applicable to the facts of this case and following the judgement I hold that the revision petition filed by the revision petitioner for appointment of Advocate Commissioner is not maintainable and the lower court has rightly dismissed the application. Therefore, I do not find any infirmity in the order passed by the lower court and the revision petition is liable to be dismissed. 5. Inthe result, the Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2009 is also closed .