Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 1394 (MAD)

Rajalakshmi v. Pon. Muthuramalingam

2013-03-21

M.VENUGOPAL

body2013
JUDGMENT 1. The Learned counsel for the Petitioners/Defendants, in the present Civil Revision Petition challenges the order of the dismissal dated 11.1.2011 passed in I.A. No.1062 of 2010 in O.S. No.231 of 2007 (filed by the Petitioners under Order 26 Rule 9 of the Civil Procedure Code) on the file of the District Munsif Court, Sirkali praying for appointment of Taluk Surveyor and submits that the trial Court has passed the impugned order in the interlocutory application against law. Further, it is contended on behalf of the Petitioners that if the Surveyor is appointed to measure the property of the Plaintiffs and the Defendants, it would minimise much of oral and documentary evidence to be let in by the parties and also it will assist the Court in arriving at the truth of the matter as regards the controversies/disputes involved between the parties. 2. The Learned counsel for the Petitioners/Defendants urges before this Court that the trial Court has erroneously observed in its order in I.A. No.1062 of 2010 in O.S. No.231 of 2007 to the effect that the Revision Petitioners/Defendants have only mentioned four survey Numbers but not mentioned the four boundaries and this observation of the trial Court is not correct because of the fact that in the plaint filed by the Respondents/Plaintiffs make mention of these survey numbers explicitly and in fact non mentioning of four survey numbers will be of little consequence in regard to the relief sought for by the Revision Petitioners praying for the appointment of Taluk Surveyor. 3. Per contra, it is the contention of the Learned counsel for the Respondents/Plaintiffs that the Respondents/Plaintiffs have filed O.S. No.231 of 2007 on the file of the District Munsif Court, Sirkali seeking the relief of permanent injunction in respect of the suit property restraining the Revision Petitioners/Defendants, their men etc. from in any way interfering with the Respondents/Plaintiffs' peaceful possession and enjoyment of the suit property. The Revision Petitioners/Defendants have also filed written statement inter-alia contending that they have not encroached upon the Respondents/Plaintiffs' suit property. Further, it is pleaded that there is no necessity for them to make an endeavour for encroachment from 25.10.2002. 4. It is brought to the notice of this Court that the main suit is in part heard stage and the evidence of the Respondents/Plaintiffs has been completed. Further, it is pleaded that there is no necessity for them to make an endeavour for encroachment from 25.10.2002. 4. It is brought to the notice of this Court that the main suit is in part heard stage and the evidence of the Respondents/Plaintiffs has been completed. Only at the time of the Petitioners/Defendants to lead evidence on their side, they have chosen to file I.A. No.1062 of 2010 on 2.11.2010 before the trial Court. It is pertinent to point out that the cross-examination on the side of the Respondents/Plaintiffs has been completed on 26.10.2010. Only on 2.11.2010, the Petitioners/Defendants have chosen to file I.A. No.1062 of 2010 seeking to appoint the Surveyor for measuring the property of the Petitioners/Defendants and the Respondents/Plaintiffs. 5. This Court points out that the main suit has been filed for the relief of permanent injunction. In a suit for permanent injunction, it is for the Respondents/Plaintiffs to prove their possession in regard to the suit property as on the date of filing of the plaint. In short, the Respondents/Plaintiffs have to stand or fall on their own legs in regard to the averments made by them in the plaint. It is needless for this Court to state that the Petitioners/Defendants cannot be permitted to gather evidence, when in fact they can lead oral and documentary evidence in the matter in issue before the trial Court. Even if the evidence can be obtained from the spot itself, then the prayer for appointment of either Surveyor/Commissioner or Advocate Commissioner is unnecessary one in the considered opinion of this Court. 6. A Court of law is not to appoint a local Commissioner for procuring evidence in favour of a party. Also, a Court of law cannot appoint a Commissioner to find out as to which party is in possession of subject matter of suit property. 7. If the purpose for appointment of an Advocate Commissioner is for collecting evidence from the spot, then, this Court opines that the interlocutory application praying for appointment of an Advocate Commissioner will not lie. 8. Added further, the main suit filed for permanent injunction is in part heard stage. In view of the fact that the suit is filed for permanent injunction, the application for appointment of Surveyor is a redundant and surplusage one. 8. Added further, the main suit filed for permanent injunction is in part heard stage. In view of the fact that the suit is filed for permanent injunction, the application for appointment of Surveyor is a redundant and surplusage one. Also, this Court holds that I.A. No.1062 of 2010 filed by the Revision Petitioners before the trial court praying for appointment of Surveyor is per se not maintainable. Even otherwise, the ultimate view taken by the trial Court in I.A. No.1062 of 2010 in O.S. No.231 of 2007, dismissing the application (except that the petitioners/Defendants have not specified the four boundaries in the application), in respect of other aspects, the view taken by the trial Court that when the main suit has been posted for examination of witnesses on the side of the Petitioners/Defendants, I.A. No.1062 of 2010 ought not to have been filed, is correct and proper one and viewing in that perspective, the Civil Revision Petition fails. 9. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs, resultantly, the order passed in I.A. No.1062 of 2010 is confirmed by this Court for the reasons assigned in this revision. Taking note of the fact that the suit is in part heard stage and also that the Petitioners/Defendants have to let in their oral and documentary evidence in the main suit, to secure the ends of justice, the trial Court is directed to dispose of the main suit in O.S. No.231 of 2007 pending on its file, within a period of three months from the date of receipt of a copy of this order and report compliance to this Court without fail. Consequently, the connected M.P. is closed.