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Madras High Court · body

2013 DIGILAW 2034 (MAD)

Govindammal v. S. P. Rajkumar

2013-06-17

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. The present civil revision petition is filed by the appellants before the court below who are the defendants in a suit for bare injunction filed by the respondent herein. They are aggrieved against the order passed by the court below in dismissing their application filed for appointment of an Advocate Commissioner to inspect the suit property including the disputed property and the schedule mentioned property and note down the physical features and the existence of the shop and to submit a report and plan. 2. The court below rejected the said application on the reason that already during the pendency of the suit, a Commissioner was appointed in I.A.No.239 of 2010 at the instance of the plaintiff and he has also filed a report before the trial court. Therefore, the court below has found that the present application filed before the Appellate Court is not maintainable since the petitioners herein are trying to establish their case by reappointing the Commissioner once again which is not warranted. 3. Heard Mr.C.Venkatesan, learned counsel appearing for the petitioners and Mr. P.Mani, learned counsel appearing for the respondent. 4. The suit in O.S.No.57 of 2006 was filed by the respondent herein seeking bare injunction in respect of the suit schedule property. It is seen that pending suit, an Advocate Commissioner was appointed in I.A.No.239 of 2010 at the instance of the plaintiff and he has filed a report with plan and other sketch under Exs.C1 to C4. 5. Learned counsel appearing for the petitioners submitted that they have also filed their objections to the Commissioner's report and inspite of filing such objection, the trial court has not considered the same and decreed the suit as prayed for and therefore, they have preferred an appeal before the lower Appellate Court. The learned counsel thus submitted that another Commissioner is to be appointed to inspect the suit property and other properties, so as to enable the petitioners as appellants before the court below to establish their case. 6. As it is admitted by both sides that a Commissioner was appointed by the trial court and also report was filed by him under Exs.C1 to C4 and that the defendants have already filed their objections, it is for the trial court to consider the same while deciding the suit between the parties. Now that a decree has been passed against the defendants. Now that a decree has been passed against the defendants. However, the learned counsel for the petitioners submits that the trial court has not considered the objections raised by them as against the report filed by the Commissioner. If that is so, it is for them to urge the said ground also before the Appellate Court. While perusing the grounds raised in the appeal before the court below, there is no specific contention raised either against the report filed by the Advocate Commissioner or the finding rendered by the trial court on that aspect. When that being the position, I failed to understand as to how the petitioners herein can seek for reappointment of an Advocate Commissioner to inspect the suit properties. When they have already filed objections and if such objections were not considered by the trial court as contended by the petitioners, it is for them to raise it before the Appellate Court to consider the same at the time of final disposal of the appeal. Since no specific ground was raised in the appeal, the learned counsel for the petitioners however seeks permission of this Court to amend the grounds of appeal to include such ground to challenge the finding rendered by the trial court with regard to the Commissioner's report. I find that such a request is reasonable and in order to meet the ends of justice, the petitioners are given liberty to file appropriate application before the lower Appellate Court either for seeking amendment of the ground or for raising additional grounds. 7. With these observations, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.