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2013 DIGILAW 1017 (MAD)

Rajendran v. Thirumalai Naicker

2013-02-18

M.VENUGOPAL

body2013
Judgment :- 1. The Petitioners/Defendants 1 to 3, 5 have focussed the instant Civil Revision Petition as against the order dated 14.03.2011 in I.A.No.127 of 2011 in O.S.No.544 of 2006 passed by the Learned Additional District Munsif, Poonamallee. 2. The Additional District Munsif, Poonamallee, while passing the impugned order in I.A.No.127 of 2011 in O.S.No.544 of 2006 on 14.03.2011, has, among other things, mentioned that 'The relief sought for in the suit is only for permanent injunction and that the appointment of Advocate Commissioner to note down the possession under the guise of finding out, the physical features of the property is not sustainable and also opined that the possession of the suit property can be determined by appropriate evidence' and consequently, dismissed the petition. 3. Assailing the dismissal order [in respect of the appointment of an Advocate Commissioner Petition] dated 14.03.2011 passed by the Additional District Munsif, Poonamallee, the Learned Counsel for the Petitioners/Defendants 1 to 3, 5 submits that by allowing I.A.No.127 of 2011 and appointed an Advocate Commissioner to note down the physical features of the suit property, no prejudice will be caused to the Respondents/Plaintiffs and also that the truth will come to the forefront and also that the identity of the suit property will be made known in a clear and deceive manner. 4. Lastly, it is the plea taken on behalf of the Petitioners/ Defendants 1 to 3, 5 that the Respondents/Plaintiffs have projected the suit with wrong boundaries and as such, they cannot take advantage of their wrongs. 5. Per contra, the Learned Counsel for the Respondents/Plaintiffs supported the order of dismissal passed by the trial Court in I.A.No.127 of 2011 in O.S.No.544 of 2006 dated 14.03.2011 and contends that the Respondents/Plaintiffs have filed the main suit O.S.No.544 of 2006 seeking the relief of permanent injunction against the Defendants, their men, agents, servants etc. from objecting the Plaintiffs (Respondents in Revision) to renovate the hut and thereby interfering with the Plaintiffs peaceful possession and enjoyment of the suit property. 6. from objecting the Plaintiffs (Respondents in Revision) to renovate the hut and thereby interfering with the Plaintiffs peaceful possession and enjoyment of the suit property. 6. A cursory glance of the averments made in the Plaint in O.S.No.544 of 2006 on the file of Learned Additional District Munsif, Poonamallee (filed by the Respondents/Plaintiffs) show that the Respondents/Plaintiffs have pleaded that they have been in absolute possession and enjoyment of the suit property without inspection and that the 1st Respondent/Plaintiff name has been entered into Town Survey records and that the 2nd Plaintiff (2nd Respondent in Revision) has obtained electricity connection in his name and more so, the family cards have been issued in their favour. 7. Before the trial Court, the Revision Petitioners/Defendants 1 to 3 have adopted the Written Statement filed by the 5th Defendant and that in paragraph 9, it is clearly mentioned that 'the Paruthipattu Villagers are in exclusive Possession and enjoyment of the suit property and also that injunction order is an equitable remedy and it cannot be granted in favour of the person who comes to the Court with unclean hands and false particulars.' 8. Also, a categorical plea has been taken by the Revision Petitioners/Defendants (in the Written Statement) that the Respondents/Plaintiffs have no manner of right, title or interest over the suit property. Besides these averments, in the Written Statement, it is also pleaded by the Revision Petitioners that 'The 1st Plaintiff (1st Respondent in Revision) has got lands with an extent of 1 acre 47 cents in the Paruthipattu Village and that the said property is the subject matter of the suit in O.S.No.1074 of 2004 pending on the file of the Learned District Munsif at Poonamallee.' 9. Apart from the above, a definite pleading is also taken on behalf of the Revision Petitioners that the suit property is a piece of Natham Poramboke land situated in the corner of Pillayar Koil Street, Paruthipattu Village and further, a Pillayar Temple is situated in the middle of the Pillayar Koil Street at Dharmaraja Koil Street junction etc. 10. Apart from the above, a definite pleading is also taken on behalf of the Revision Petitioners that the suit property is a piece of Natham Poramboke land situated in the corner of Pillayar Koil Street, Paruthipattu Village and further, a Pillayar Temple is situated in the middle of the Pillayar Koil Street at Dharmaraja Koil Street junction etc. 10. In view of the stand taken by the Respondents/Plaintiffs in their Plaint in O.S.No.544 of 2006 and also the counter pleading made by the Revision Petitioners/Defendants in the Written Statement, this Court is of the considered view that the truth, veracity or genuineness of these pleadings will have to be discerned by the trial Court during the conduct of the trial of the main suit in O.S.No.544 of 2006 on its file in the form of oral and documentary evidence to be adduced/let in by the respective parties concerned. Also, an option is available to the parties to examine respective witnesses on their side to prove or substantiate their version of the claim made by them in the pending suit on the file of the trial Court. 11. Be that as it may, in view of the fact that the main suit filed by the Respondents/ Plaintiffs is only for the relief of permanent injunction against the Defendants, their men etc., from objecting to the Respondents/Plaintiffs to renovate the hut and thereby interfered with their peaceful possession of the enjoyment of the suit property in any manner, this Court is of the considered view that who is in actual possession of the property at the time of filing of the present suit in O.S.No.544 of 2006 on the file of the trial Court can be looked into or gone into by the trial Court in the main suit O.S.No.544 of 2006 at the time of conduct of trial of the case and to find out as to who is in possession of the suit property, it is the primordial duty of the Court in this regard, which act cannot delegate to an Advocate Commissioner. Furthermore, this Court also holds that I.A.No.127 of 2011 filed by the Revision Petitioners/Defendants before the trial Court in O.S.No.544 of 2006 praying for an appointment of an Advocate Commissioner to find out the physical features of suit property is nothing but a surplusage, otiose and a futile one. Furthermore, this Court also holds that I.A.No.127 of 2011 filed by the Revision Petitioners/Defendants before the trial Court in O.S.No.544 of 2006 praying for an appointment of an Advocate Commissioner to find out the physical features of suit property is nothing but a surplusage, otiose and a futile one. Viewed in that perspective, the Civil Revision Petition is fails. 12. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Resultantly, the order passed by the trial Court in I.A.No.127 of 2011 in O.S.No.544 of 2006 dated 14.03.2011 is affirmed by this Court for the reasons assigned in this Revision. Since the suit is of the year 2006 (7 years suit), this Court, on the basis of Equity, Fair Play, Good Conscience and even as a matter of prudence, directs the trial Court to frame necessary issues in the main suit (if not already framed) and after completing the necessary formalities is further directed to dispose of the main suit within a period of four months from the date of receipt of copy of this order and to report compliance before this Court without fail. The trial Court is also to dispose of the suit in a dispassionate manner uninfluenced with any of the observations made by this Court. The parties are directed to lend their assistance and co-operation in regard to the disposal of the main suit within the time determined by this Court. The parties are also at liberty to raise all factual and legal pleas in regard to the controversies/disputes involved in the suit and the trial Court is directed to provide enough/adequate opportunities to the parties concerned. Consequently, connected Miscellaneous Petition is also dismissed.