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2010 DIGILAW 1602 (MAD)

Kalamani v. Ezhilarasan

2010-04-06

M.JAICHANDREN

body2010
Judgment :- This civil revision petition has been filed against the order, dated 9.4.2009, made in I.A.No.1183 of 2008, in O.S.No.106 of 2003, on the file of the District Munsif Court, Jayankondam. 2. The petitioner had filed the suit, in O.S.No.106 of 2003, on the file of the District Munsif Court, Jayankondam, for the relief of permanent injunction. The petitioner had also filed an interlocutory application, in I.A.No.1183 of 2008, in O.S.No.106 of 2003, under Order XXVI Rules 9 and 10 of the Civil Procedure Code, 1908, to re-issue the warrant to the same Commissioner, who had inspected the suit property, earlier. 3. The trial Court had dismissed the said application stating that the Advocate Commissioner appointed by the Court, in the year, 2003, had already filed a detailed report and plan and the respondents, who are the defendants in the suit, had also filed their objections to the said report. The petitioner had filed the interlocutory application, in I.A.No.1183 of 2008, belatedly, after a lapse of six years thereafter. 4. The only reason stated by the petitioner for reissuing the warrant to the same Advocate Commissioner is that he had not identified the suit property, properly. However, the trial Court had found that the Advocate Commissioner appointed by the Court had noted down the physical features of the suit property, giving sufficient details. Further, since the suit, in O.S.No.106 of 2003, had already been listed for trial, on 17.11.2008, and as the petitioner had filed the application only to drag on the proceedings in the suit, the said application had been dismissed. 5. The learned counsel appearing on behalf of the petitioner had stated that the learned District Munsif, Jayankondam, had failed to see that the petitioner had filed objections to the commissioner’s report, immediately, on the filing of the said report. The report of the Commissioner had been filed, on 10.7.2003, and the objections were filed, on 16.7.2003. However, the learned District Munsif had not considered the objections raised by the petitioner. While so, the second defendant had expired, in the year, 2003 and the legal heirs had been impleaded, in the year, 2008. Therefore, the petitioner had preferred the interlocutory application for reissuing the warrant to the same Advocate Commissioner to examine the issues raised in the objections filed by the petitioner, even before the suit was posted for trial. While so, the second defendant had expired, in the year, 2003 and the legal heirs had been impleaded, in the year, 2008. Therefore, the petitioner had preferred the interlocutory application for reissuing the warrant to the same Advocate Commissioner to examine the issues raised in the objections filed by the petitioner, even before the suit was posted for trial. Therefore, it cannot be said that the interlocutory application filed by the petitioner is belated and that it had been filed only with the intention of dragging on the proceedings in the suit. 6. The learned Judge had also failed to see that the non- identification of the suit property in the plan attached to the report of the Advocate Commissioner, is due to the reason that the said Advocate Commissioner had not taken the assistance of a surveyor. Since, the said defect would cause serious prejudice and grave injustice to the petitioner the petitioner, he had filed the interlocutory application, in I.A.No.1183 of 2008. 7. The learned counsel for the petitioner had relied on the decision, reported in Harbhajan Singh V. Shakuntala Devi (AIR 1976 Delhi 175) and Kalandi Swain V. Braja Kishore (AIR 1980 Orissa 98) to state that the trial Court should have considered the objections filed by the petitioner against the report of the Advocate Commissioner, before taking up the suit for hearing, on merits. 8. The learned counsel appearing on behalf of the respondents had submitted that the petitioner had filed the interlocutory application, belatedly, after a lapse of six years, only with the mala fide intention of dragging on the proceedings in the suit. The Commissioner appointed by the trial Court had given a detailed report, along with the plan. However, the petitioner had filed the interlocutory application, in I.A.No.1183 of 2008, to reissue the warrant to the same Advocate Commissioner, to reinspect the suit property, without showing sufficient reasons for the said request. The trial Court had rightly come to the conclusion that the application filed by the petitioner is not maintainable. Therefore, the civil revision petition is liable to be dismissed. 9. The trial Court had rightly come to the conclusion that the application filed by the petitioner is not maintainable. Therefore, the civil revision petition is liable to be dismissed. 9. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to interfere with the order of the trial Court, dated 9.4.2009, made in I.A.No.1183 of 2008, in O.S.No.106 of 2003. It is noted that the petitioner had filed the interlocutory application for reissuing the warrant to the Advocate Commissioner, to reinspect the suit property, belatedly, after a period of nearly six years from the date of the filing of the report by the Advocate Commissioner, on 10.7.2003. Further, no reasons have been stated by the petitioner for filing the application, belatedly. As the suit, in O.S.No.106 of 2003, had been listed for trial, the trial Court was right in dismissing the interlocutory application filed by the petitioner, as devoid of merits. In such view of he matter, the present Civil Revision Petition is liable to be dismissed. Hence, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.