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2013 DIGILAW 1474 (MAD)

N. Pasupathy v. A. M. Sekar

2013-04-01

G.RAJASURIA

body2013
Judgment :- 1. This second appeal is focussed by the original defendant, animadverting upon the judgment and decree dated 20.12.2011 passed by the learned V Additional Judge, (In charge, IV Additional Court), City Civil Court, Chennai in A.S.No.160 of 2007 in confirming the judgment and decree dated 11.10.2006 passed by the learned VIII Assistant Judge, City Civil Court, Chennai in O.S.No.3214 of 2004. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. 3. Heard both sides. 4. The epitome and the long and the short of the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: The operative portion of the earlier judgment of this court dated 31.03.2011 passed in S.A.No.1544 of 2008 would run thus: "14. Accordingly, I am of the considered view that the matter has to be sent back to the first appellate Court for appointing an Advocate Commissioner, preferably the same Advocate Commissioner or some other Advocate Commissioner to visit the suit property and measure the same with the assistance of a Government Surveyor and also with reference to public records and documents of both sides, after giving due notice to them. The property of the plaintiff and the defendant should be measured and the suit property should be located precisely. By way of disambiguating the ambiguity, if any, I make it clear that if the appellate Court finds after such measurement that the 'B' scheduled property, so to say, the disputed property comes within the larger extent of 1431 sq.ft. belonging to the plaintiff as per Ex.A1, then automatically the plaintiff would be entitled to a decree in his favour. The first appellate Court shall take endeavour to see that the matter is disposed of within a period of two months from the date of receipt of a copy of this judgment. 15. Both the parties shall appear before the first appellate Court on 25.04.2011. 16. Accordingly, the aforesaid substantial questions of law are answered and the Second Appeal is ordered to this effect. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. 17. 15. Both the parties shall appear before the first appellate Court on 25.04.2011. 16. Accordingly, the aforesaid substantial questions of law are answered and the Second Appeal is ordered to this effect. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. 17. The learned counsel for the plaintiff would make an extempore submission that pending disposal of the proceedings before the first appellate Court there shall not be any construction in the disputed property, for which the learned counsel for the defendant undertakes that there will not be any construction in the disputed property and accordingly I order so." 5. Both sides, now in unison, would state that the direction of this court as contained supra was not carried out by the first appellate court. However, the first appellate court dismissed the appeal, which was filed by the defendant/second appellant herein. Hence, it is just and necessary to extract here under the relevant portion of the impugned judgment dated 20.12.2011 of the first appellate court: "22. After receipt of the case records, this Court issued the warrant to the same Advocate Commissioner to execute the warrant. The Advocate Commissioner was now and then reminded to expedite the process. Since a time bound fixed by the Hon'ble High Court is about to lapsed, a letter was addressed to the Hon'ble High Court seeking extension of time stating non-co-operation of the parties with the Advocate Commissioner. In response to the request, the Hon'ble High Court vide letter dated 03.10.2011 had observed as follows:- "If the parties or counsel did not co-operate with the Advocate Commissioner, the Court can direct the Commissioner to return the warrant and on that ground the case cannot be kept pending. Hence, the IV Additional Judge is given three months time from today to dispose the appeal". 6. It appears that the learned first Appellate Judge simply got back the warrant from the Commissioner and disposed of the matter. To say the least, the procedure adopted by the first appellate court is far from satisfactory. Hence, the IV Additional Judge is given three months time from today to dispose the appeal". 6. It appears that the learned first Appellate Judge simply got back the warrant from the Commissioner and disposed of the matter. To say the least, the procedure adopted by the first appellate court is far from satisfactory. At least, after getting the warrant back from the earlier Advocate Commissioner, who failed to execute the warrant by taking the assistance of the Surveyor, a fresh Advocate Commissioner could have been appointed and the higher officials of the Revenue Department could have been directed by the court to render surveyor's assistance to the Advocate Commissioner or the learned first appellate Judge could have made a request to the Principal District Judge, City Civil Court, Chennai to address a letter to the Collector concerned for rendering assistance of a Surveyor to the Advocate Commissioner;but that was not done so. Simply the matter was disposed of, which means that the judgment of this court passed earlier on 31.03.2011 was ignored and not at all implemented. As such, the substantial question of law, which falls for consideration now for disposal of this second appeal is as follows: "Whether the first appellate court simply on the ground that the Advocate Commissioner appointed by him did not execute the warrant within the time limit, was justified in recalling the warrant and in deciding the appeal ignoring the earlier judgment of this court passed in S.A.No.1544 of 2008 dated 31.03.2011?" 7. The answer to the aforesaid substantial question of law is clear that the High court judgment is passed not for being modified by the lower court or for it snubbing or belittling it. Such an attitude on the part of the lower court is severely deprecated. 8. Hence, I am of the considered view that the judgment dated 20.12.2011 passed by the learned first appellate Judge has to be set aside and accordingly, it is set aside and the earlier direction of this court in S.A.No.1544 of 2008 shall hold good and it is once again extracted here under for ready reference: "14. 8. Hence, I am of the considered view that the judgment dated 20.12.2011 passed by the learned first appellate Judge has to be set aside and accordingly, it is set aside and the earlier direction of this court in S.A.No.1544 of 2008 shall hold good and it is once again extracted here under for ready reference: "14. Accordingly, I am of the considered view that the matter has to be sent back to the first appellate Court for appointing an Advocate Commissioner, preferably the same Advocate Commissioner or some other Advocate Commissioner to visit the suit property and measure the same with the assistance of a Government Surveyor and also with reference to public records and documents of both sides, after giving due notice to them. The property of the plaintiff and the defendant should be measured and the suit property should be located precisely. By way of disambiguating the ambiguity, if any, I make it clear that if the appellate Court finds after such measurement that the 'B' scheduled property, so to say, the disputed property comes within the larger extent of 1431 sq.ft. belonging to the plaintiff as per Ex.A1, then automatically the plaintiff would be entitled to a decree in his favour. The first appellate Court shall take endeavour to see that the matter is disposed of within a period of two months from the date of receipt of a copy of this judgment." 9. Accordingly, the matter is remitted back to the first appellate court with an additional direction to the above directions extracted supra in the earlier second appeal, that a fresh Advocate Commissioner shall be appointed with the aforesaid mandate and he shall adhere to it properly. If there is any difficulty in securing the assistance of a Surveyor, the observation made by this court may be resorted to. Still, if there is any difficulty in this regard, the learned first appellate Judge shall bring it to the knowledge of the Registrar, High Court, Madras, who in turn, shall bring it to the knowledge of this Court for issuing appropriate directions. The first appeal shall be disposed of within a period of four months from the date of receipt of a copy of this order and both parties shall appear before the court concerned on 25.04.2013. 10. The first appeal shall be disposed of within a period of four months from the date of receipt of a copy of this order and both parties shall appear before the court concerned on 25.04.2013. 10. The learned counsel for the plaintiff would make an extempore submission that pending disposal of the proceedings before the first appellate Court there shall not be any construction in the disputed property. 11. In view of the said submission, status quo as ordered in the earlier judgment dated 31.03.2011 shall hold good till pending disposal of the first appeal in A.S.No.160 of 2007. 12. With the above direction, this second appeal is disposed of. No costs. Consequently the connected miscellaneous petition is closed.