Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3686 (MAD)

P. S. Rengarajan v. K. G. Pandurangan

2012-08-24

S.TAMILVANAN

body2012
Judgment :- 1. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the first respondent. 2. This Civil Revision hasbeen preferred challenging the order, dated 03.07.2012 made in C.M.P.Sr.No.58572 of 2011 in A.S.No.286 of 2011 on the file of the III Additional Judge, City Civil Judge, Chennai. 3. It is seen that the unnumbered C.M.P in C.M.P.Sr.No.58572 of 2011 in A.S.No.286 of 2011 was filed by the petitioner herein under Order XVIII Rule 18 CPC, seeking the appellate Judge of the Court below to inspect the suit property and other properties for ascertaining the correct position and existence in Adyar Apartments at Kottur Gardens by way of local spot inspection by the learned Judge of the Court below. 4. It is an admitted fact that originally an Advocate-Commissioner was appointed by the trial Court to inspect the suit property and note down the physical features. The said Commissioner filed his report and sketch, which were scrapped by Court and a second Commissioner was appointed for the same purpose. The second Advocate-Commissioner after his inspection, filed his report and sketch before the trial Court, which were marked as documents. However, after the trial, the suit was decreed, aggrieved by which, the petitioner herein preferred appeal before the Court below. 5. It is seen that in A.S.No.286 of 2011 before the Appellate Court, the petitioner / defendant has filed the petition, seeking the Judge of the Court below to inspect the suit property and also other properties for ascertaining the correct position of existence in Adyar Apartments at Kottur Garden, Kotturpuram, Chennai. As contended by the learned counsel appearing for the first respondent, the other property is not the subject matter of the suit and the appeal. However, the petitioner herein had sought the appellate Judge to make an inspection of the suit properties. 6. It is also not in dispute that after scrapping the Report and sketch filed by the first Advocate-Commissioner, second Advocate-Commissioner was appointed to inspect the property, so as to note down the physical features of the suit property and after inspecting the property, he filed his report and sketch. 6. It is also not in dispute that after scrapping the Report and sketch filed by the first Advocate-Commissioner, second Advocate-Commissioner was appointed to inspect the property, so as to note down the physical features of the suit property and after inspecting the property, he filed his report and sketch. According to the learned counsel for the first respondent, the relief sought for is not legally maintainable, since there is no need for the Court below to inspect the suit property and other properties, in view of the report and sketch filed by the second Advocate-Commissioner is intact. 7. Learned counsel appearing for the petitioner relying on the decision Raj Narain Rai vs. Sadhu Rai, reported inAIR 1995 Allahabad 351 rendered by the Allahabad High Court submitted that inspection of disputed properties by the Appellate Court under Order XVIII Rule 18 CPC is not beyond the jurisdiction of the appellate court. However, it is seen that the decision relied on relates to the discretionary power of the appellate court, if the Court decides that such inspection is needed for getting proper clarification on the factual aspects, to meet the ends of justice. 8. It has been ruled by Full Bench of the Hon'ble Supreme Court in Ugam Singh v. Kesrimal reported in AIR 1971 SC 2540 , whereby, it was made clear that under Order XVIII, Rule 18 CPC, inspection by Court is the discretion of the Court, only to meet the ends of justice, where further clarity is needed in the report and sketch filed by the Commissioner. Hence, such an inspection by the Court was held not vitiated, however, it is only the discretion of the Court based on the evidence, which would warrant the necessity of the Court, to inspect the property, apart from Commissioner's report and sketch. Hence, the decision cited by the learned counsel for petitioner has no relevance to the facts and circumstances of the case on hand, since the report and sketch filed by the second Advocate-Commissioner was not challenged by way of Revision and no such circumstance has been pointed out on behalf of the petitioner / defendant. 9. Hence, the decision cited by the learned counsel for petitioner has no relevance to the facts and circumstances of the case on hand, since the report and sketch filed by the second Advocate-Commissioner was not challenged by way of Revision and no such circumstance has been pointed out on behalf of the petitioner / defendant. 9. It cannot be disputed that the appellate Court is vested with the power under Order XVIII Rule 18 CPC to inspect the suit property, however, the power could be exercised only at the discretion of the Court below, considering the facts and circumstances of the case, to meet the ends of justice. Unless legal necessity warrants, the Presiding Judge of the Court need not have any personal inspection of the property and no party to the proceeding is entitled to compel the discretion of a Judge to have personal inspection of the suit property and also other properties. Inspecting other properties is beyond the scope of the suit and the appeal. Even if there is any similar encroachment made by any other flat owner, for which the petitioner cannot collect evidence, by way of getting an order, to justify the alleged encroachment made in the site allotted for common purpose. An Advocate-Commissioner is only an officer of the Court and it is not in dispute that the second Commissioner had given notice to both the parties prior to his inspection. 10. In the instant case, admittedly, after scrapping the earlier Advocate-Commissioner's report filed by the first Advocate-Commissioner, second Commissioner was appointed and after his inspection, he filed his report and sketch, before the trial court. 11. It is an admitted fact that the petitioner herein and the first respondent are two flat owners of Adyar Apartments, Kottur Gardens, Kottupuram, Chennai – 85. The first respondent purchased his flat in the second floor and the petitioner herein is residing at D2, ground floor of the said Apartments. 12. According to the first respondent, the petitioner has encroached a portion of the common area of all the flat owners of the apartments and made fencing and also put up a gate detrimental to the rights of the first respondent and other flat owners. 12. According to the first respondent, the petitioner has encroached a portion of the common area of all the flat owners of the apartments and made fencing and also put up a gate detrimental to the rights of the first respondent and other flat owners. Hence, sought mandatory injunction directing the petitioner / first defendant to remove the fencing and restore the common area described in schedule "C" of the plaint and also to remove the chain link fencing and the gate put up in the front side, back side and car shed-cum-portico, put up in the front portion by him in the "C" schedule of property and permanent injunction restraining the petitioner, his men or agent from in any manner carrying on any illegal construction, activities in the common area available for common enjoyment as per the sale deeds. 13. Learned counsel appearing for the first respondent submits that the petition has been filed only with a view of adopting delay tactics against the early disposal of the appeal and according to him, the revision itself is not legally maintainable, as there is no final order being challenged. However, learned counsel appearing for the petitioner submits that the Court below be directed to pass final order in the un-numbered C.M.P, as the unnumbered petition was only a return by the Court below. 14. In the instant case, it is an admitted fact that the suit property was already inspected by second Advocate-Commissioner and he has also filed his report and sketch. Only after scrapping the earlier report filed by the first Advocate-Commissioner, the second Commissioner was appointed. On the facts and circumstances, it was argued for the contesting respondent that there is no need for the learned Judge of the Court below to inspect the property personally, as per Order XVIII Rule 18 CPC. 15. Order XVIII Rule 18 CPC, reads as follows : "Power of Court to inspect – The Court may at any stage of a suit inspect any property or thing concerning which any question may arise and where the Court inspects any property or thing it shall as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit." 16. As per Order XVIII Rule 18 of the Code of Civil Procedure, at any stage, Court can inspect the property, hence, the said provision of law is applicable even for the appellate Court. However, it is only the discretion of the Court, in order to get clarification on the factual aspect. In the instant case, there is no need for the learned Judge of the Court below to inspect the suit property and other properties in person. It is seen further that as per the impugned order, the Court below has simply returned the petition stating as follows:- "I.A.No.9952 of 2009, I.A.No.10021 of 2008 were filed to note down the physical feature of the suit property. (When the application filed to note down the physical feature of suit property). In the said application there is no prayer to note down the physical feature in and avoid the suit property. Only now the petitioner is claiming this. Since already two chances given, the petitioner has not availed. Hence, returned. Time one week." It is not in dispute that in the unnumbered petition, no final order has been passed by the Court below. 17. On the said circumstances, this Court has to consider whether the Court below has to be directed to dispose the un-numbered C.M.P. in C.M.P.Sr.No.58572 of 2011, to meet the ends of justice. As the petition itself is not maintainable, in view of the second Advocate-Commissioner's report and sketch intact and also considered by the trial court in its Judgment, the petitioner / appellant is not entitled to seek the appellate Judge himself to inspect the property. Speedy justice is one of the fundamental rights under Article 21 of the Constitution of India, as interpreted by the Hon'ble Apex Court, hence, causing delay by filing vexatious petition would not be a right of any party. Without raising any legally sustainable ground, the petitioner cannot simply file a petition under XVIII Rule 18 CPC and argued that the Court below is vested with the power to inspect the property. 18. Without raising any legally sustainable ground, the petitioner cannot simply file a petition under XVIII Rule 18 CPC and argued that the Court below is vested with the power to inspect the property. 18. In the instant case, it is quite clear that there is no need for this Court to direct the Court below to dispose the unsustainable, un-numbered C.M.P filed under Order XVIII Rule 18 C.P.C. The scope of the prayer is that the appellate Judge has to inspect the suit property and other properties, which are not the subject matter of the suit, though the second Advocate-Commissioner's report and plan were not challenged by the petitioner by way of Revision and are intact for consideration. 19. It is well settled that Advocate-Commissioner is only an officer of the Court, exercising the power of the Court as an independent officer, appointed by the Court in inspecting the property and submitting his report and sketch. Both the parties were entitled to give memo of instructions and after filing of the report and sketch, they were entitled to file objection to the report and sketch and the Commissioner could be examined as a witness before the Court, if need be. It is not in dispute that the Court below is empowered to inspect the property under Order XVIII Rule 18 CPC. Even in such circumstance, the parties are at liberty to raise objection on the personal finding of the Judge in the inspection. However, there is no possibility to examine the Judge as a witness before the same Court. Therefore, opportunity of examining Advocate-Commissioner is also right of the parties, if the property is inspected by Advocate-Commissioner. In order to avoid any controversy, personal inspection of the property in dispute, being the discretion of the Judge of the Court below, the same cannot be compelled. The power is vested with the trial court as well as the appellate court under Order XVIII Rule 18 CPC to make inspection, to meet the ends of justice. In the revision, the petitioner has not raised any special circumstance, to direct the Court below to inspect the property under Order XVIII Rule 18 CPC. Hence, the revision petition is liable to be dismissed as not maintainable. 20. In the revision, the petitioner has not raised any special circumstance, to direct the Court below to inspect the property under Order XVIII Rule 18 CPC. Hence, the revision petition is liable to be dismissed as not maintainable. 20. During the course of the arguments, learned counsel appearing for the petitioner submitted that there are other flat owners, who have also made fencing in the common areas, however, the first respondent has not filed any suit against such persons, but filed the suit only against the petitioner. If there is any encroachment or fencing made by other flat owners in any portion of the common area, it is open to the petitioner to file suit against them to remove the same. However, the petitioner cannot justify anything based on the alleged encroachment and fencing made by other flat owners in the common area. 21. On the aforesaid facts and circumstances, this court is of the view that there is no need to direct the Court below to dispose the unnumbered C.M.P, in view of the fact that the relief sought for is not legally sustainable and such a direction would cause only delay in the disposal of the appeal, pending in A.S.No.286 of 2011 before the Court below. 22. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. Considering the facts and circumstances, the Court below is directed to dispose the appeal in A.S.No.286 of 2011, within three months from the date of receipt of a copy of this order, uninfluenced by the findings, if any by this Court in this order. No order as to costs.