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2010 DIGILAW 1668 (MAD)

K. Sivakumar v. K. Sivanesan

2010-04-08

M.JAICHANDREN

body2010
Judgment :- This Civil Revision Petition has been filed against the permission granted by the III Additional Subordinate Judge, Coimbatore, in Memo, dated 18.9.2008, filed in I.A.No.292 of 2007, in O.S.No.148 of 2007. 2. The petitioner had filed the suit, in O.S.No.148 of 2007, on the file of the III Additional Subordinate Judge, Coimbatore, praying for a decree declaring the sale deed, dated 12.8.2004, executed by the first defendant, in favour of the second defendant, as null and void and not binding on the plaintiff, for the division and allotment of one such share in the suit property to the plaintiff and for a permanent injunction restraining the defendants from alienating or encumbering the suit property. 3. The respondent, who is the second defendant in the suit, had filed an interlocutory application, in I.A.No.292 of 2007, for the appointment of an Advocate Commissioner to measure the suit property and to file a report thereon, along with a plan. By an order, dated 28.7.2008, the learned III Additional Subordinate Judge, Coimbatore, had allowed the application and had appointed an Advocate Commissioner to measure the suit property and to file a plan, along with the report thereon. 4. The Advocate Commissioner was directed to measure the suit property, if necessary, with the help of a surveyor and to file the report, on or before 14.8.2008. Thereafter, the petitioner had filed a memo, dated 18.9.2008, stating that the Advocate Commissioner is in need of a surveyor to measure the suit property, as directed by the trial Court and that one Vijaya Raghavendran, a Retired surveyor is willing to provide assistance to the Advocate Commissioner for measuring the suit property. By the said memo a request had been made to the trial Court to issue a direction to the Surveyor to assist the Advocate Commissioner in measuring the suit property. The trial Court, without issuing any notice to the petitioner had permitted the engagement of the surveyor, as prayed for by the respondent. 5. The learned counsel for the petitioner had submitted that the permission granted by the learned III Additional Subordinate Judge, Coimbatore, to engage the Retired Surveyor, as prayed for by the respondent is arbitrary and illegal. The permission granted by the learned Judge, without notice being issued to the petitioner is liable to be set aside, as it is in violation of the principles of natural justice. The permission granted by the learned Judge, without notice being issued to the petitioner is liable to be set aside, as it is in violation of the principles of natural justice. When the learned Judge had passed an order, on 28.7.2008, appointing an Advocate Commissioner to measure the suit property, if necessary, with the help of a surveyor, the memo filed by the respondent is unnecessary and unwarranted. The permission granted by the learned Judge, to the respondent, without any notice to the petitioner and the Advocate Commissioner, cannot be sustained in the eye of law. 6. The learned counsel had also submitted that if the Taluk Surveyor is engaged to assist the Advocate Commissioner, he would measure the suit property, as per the revenue records. Therefore, the permission sought for by the respondent to engage a Retired Surveyor, to measure the suit property, should have been rejected. Further, there is a chance for the respondent to unduly influence the Retired Surveyor recommended by him, while measuring the suit property. 7. The learned counsel appearing on behalf of the respondent had submitted that the civil revision petition filed by the petitioner is frivolous in nature. He had submitted that the suit, in O.S.No.148 of 2007, had been filed before the District Munsif, Coimbatore, in the month of February, 2007. The interlocutory application, in I.A.No.292 of 2007, for the appointment of an Advocate Commissioner, had been filed, on 12.4.2007. On 28.7.2008, a no objection endorsement was made by the petitioner for the appointment of the Advocate Commissioner. By an order, dated 28.7.2008, an Advocate Commissioner had been appointed, directing him to measure the suit property and to file a report thereon, along with a plan, by taking the help of a surveyor, if found necessary. Thereafter, the respondent had filed a memo praying for the permission of the trial Court to engage one Vijaya Raghavendran, a Retired Surveyor, to help the Advocate Commissioner in measuring the suit property. 8. The learned Judge had granted the permission, as prayed for by the respondent, in view of the fact that an order had already been passed, on 28.7.2008, to appoint the Advocate Commissioner, for the purpose of measuring the suit property with the assistance of a surveyor, if found necessary. 8. The learned Judge had granted the permission, as prayed for by the respondent, in view of the fact that an order had already been passed, on 28.7.2008, to appoint the Advocate Commissioner, for the purpose of measuring the suit property with the assistance of a surveyor, if found necessary. There is nothing perverse or illegal in the permission granted by the learned Judge, to engage a Retired Surveyor, to assist the Advocate Commissioner, to measure the suit property. 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 grant the reliefs, as prayed for in the present civil revision petition. The petitioner has not been in a position to show as to how the engagement of a Retired Surveyor, to assist the Advocate Commissioner, in measuring the suit property, would prejudice the petitioner. A mere apprehension that the Retired Surveyor would be unduly influenced by the respondent cannot be a reason to hold that the permission granted by the learned III Additional Subordinate Judge, Coimbatore, is arbitrary or illegal. The permission granted by the learned III Additional Subordinate Judge, Coimbatore, is only consequential in nature, as he had already passed an order, on 28.7.2008, appointing an Advocate Commissioner to measure the suit property, with the help of a surveyor, if found necessary. As such, the contentions raised on behalf of the petitioner cannot be countenanced. The petitioner has not been in a position to show sufficient reasons for this Court to invoke its powers, under Article 227 of the Constitution of India, to set aside the permission granted by the learned III Additional Subordinate Judge, Coimbatore, as prayed for in the present civil revision petition. Since, the Civil Revision Petition is devoid of merits, it is liable to be dismissed. Hence, it is dismissed. No costs.