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2009 DIGILAW 662 (MAD)

K. Suresh & Another v. R. Devadoss & Others

2009-03-03

G.RAJASURIA

body2009
Judgment Inveighing and impugning the order dated 29.08.2008 passed by the learned II Assistant Judge, City Civil Court, Chennai in I.A.No.3047 of 2008 in O.S.No.6844 of 2008 , this civil revision petition is focussed. 2. The gist and kernel, the pith and marrow of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The first respondent/plaintiff filed the suit O.S.No.464 of 2004 seeking the following reliefs: - grant of declaration that the plaintiff is entitled to enjoy his property bearing door No.14 A, III Main Road, Raja Annamalaipuram, Chennai-28 without any disturbance or sufferings caused due to the illegal construction constructed by the defendants 1 and 2 in the land owned by them. grant of declaration that the construction of building by defendants 1 and 2 in door No.14 A, III Main Road, Raja Annamalaipuram, Chennai-28 contrary to the sanctioned plan and declare the same as illegal construction. grant of permanent injunction restraining the defendants 1 and 2 from any further illegal construction contrary to the sanctioned plan in the property bearing Door No.14A, III Main Road, Raja Annamalaipuram, Chennai 28 under Section 25 (a) of the Tamil Nadu Court Fee and Suit Valuation Act, 1955. for a permanent injunction restraining the defendants 1 and 2 to let out the already constructed portion in the property bearing Door No.14 A, III Main Road, Raja Annamalaipuram to third parties for occupying the said portions by defendants 1 and 2. grant of permanent injunction restraining the defendants 1 and 2 from selling or alienating the first or second floor in Door No.14 A, III Main Road, Raja Annamalaipuram, Chennai 28 constructed by them contrary to the sanction plan. for a mandatory injunction directing the defendants 1 and 2 to demolish the existing unauthorized construction or structure constructed by them in the property bearing Door No.14 A, III Main Road, Raja Annamalaipuram. for a mandatory injunction directing the defendants 3 and 4 to demolish the existing unauthorised construction or structure constructed by the defendants 1 and 2 in the property bearing Door No.14 A, III Main Road, Raja Annamalaipuram. for a mandatory injunction directing the defendants 3 and 4 to demolish the existing unauthorised construction or structure constructed by the defendants 1 and 2 in the property bearing Door No.14 A, III Main Road, Raja Annamalaipuram. The defendants 1 and 2 entered appearance and filed their written statement; subsequently, the defendants 1 and 2 filed I.A.No.3047 of 2008 under Order 26 Rule 9 of the Code of Civil Procedure with the following prayer: to appoint an Advocate Commissioner to inspect both the properties belonging to petitioner and respondent and note down the physical features including the work done by the petitioners in ground floor, I floor and kitchens and the entire property facing the respondents property and submit a report. After hearing both sides, the lower court dismissed the said I.A. Animadverting upon such order of the lower Court, this revision has been focussed on various grounds, inter alia thus: The lower court wrongly understood as though inasmuch as the suit itself is not one for enforcing the oral specific performance, there was no justification for the revision petitioner to ask for appointment of an Advocate Commissioner as prayed in the said I.A. The lower court failed to consider that visiting the suit property by the Advocate Commissioner and noting the physical features would enable the Court to understand as to whether the revision petitioners have complied with the direction of oral compromise or not. Accordingly, the revision petitioners prayed for setting aside the order of the lower court and for allowing the I.A. 3. Despite printing the names concerned, none appeared and there is no representation on their behalf. 4. A plain poring over and perusal of the typed set of papers coupled with the order of the lower Court would demonstrate and display, portray and exemplify that, it appears during the pendency of the suit, there was some representation made by the revision petitioners/defendants to the first respondent/plaintiff that the former would make some modifications in the construction effected by them to suit the taste of the later; according to the revision petitioners, even though they in stricto sensu complied with the request of the first respondent/plaintiff, he is taking prevaricative stand and such like. At this juncture, I would like to highlight that there is no indication that such alleged oral agreement was entered into between the plaintiff and the defendants during the pendency of the suit with the permission of the Court. I am at a loss to understand as to how the defendants can try to set up a case based on the alleged oral agreement and try to thrust upon the plaintiff and also seek the assistance of the Court so as to cull out evidence in their favour. 5. It is a common or garden principle of law relating to appointment of an Advocate Commissioner that none of the parties to a lis is entitled to get the assistance of a Surveyor under Order 26 Rule 9 of the Code of Civil Procedure purely for the purpose of gathering evidence in his favour. The first respondent/plaintiff is duty bound to prove his case so as to get the relief and the plaintiff himself has not sought for appointment of any Advocate Commissioner. But on the other hand the defendants wanted to gather evidence so as to project before the Court as though there was a full fledged oral agreement during the pendency of the suit between the plaintiff and the defendants and that the defendants executed the same in stricto sensu. It is therefore, ex facie and prima facie clear that the very purpose of getting the Commissioner appointed as found set out by the defendants in their affidavit is totally untenable and accordingly, the lower Court correctly dismissed it, which warrants no interference by this Court. 6. Here the respondents 2 and 3 are also defendants 3 and 4 in the suit and as per law they are legally bound to note whatever modifications effected in the property concerned, by the defendants and if at all the defendants are interested, it is for the defendants to adduce evidence positively, by examining themselves as well as other witnesses including the officials of D3 and D4, who must be able to speak about the present state of physical features also. 7. With this observation, this civil revision petition is dismissed confirming the order passed by the lower Court in I.A.No.3047 of 2008. No costs. Consequently, the connected miscellaneous petition is closed.