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2014 DIGILAW 3961 (MAD)

M. Velu v. Kuppuswamy

2014-10-20

R.KARUPPIAH

body2014
JUDGMENT R. KARUPPIAH, J. 1. The revision petitioner, who is 2nd defendant in the original suit filed this revision petition against order and decreetal order passed in I.A. No. 73 of 2009 in A.S. No. 6 of 2003 dated 30.07.2009 on the file of Subordinate Court, Madurantakkam, Kanchipuram. 2. For the sake of convenience, the 2nd defendant in the original suit is referred as revision petitioner, the plaintiff in the original suit is referred as 1st respondent and the 1st defendant in the original suit is referred as 2nd respondent hereafter. 3. The 1st respondent/plaintiff filed a suit in O.S. No. 159 of 1997 for declaration and permanent injunction against the revision petitioner and the 2nd respondent herein. The revision petitioner contested the above said suit but the trial court has decreed the suit as prayed for by the 1st respondent. Aggrieved over the above said decree and judgment passed by the trial court, the revision petitioner preferred first appeal in A.S. No. 6 of 2003. 4. During the pendency of the first appeal, the revision petitioner filed three applications in I.A. No. 44 of 2003 to receive additional documents, I.A. No. 57 of 2003 to frame additional issues and I.A. No. 60 of 2003 to receive additional documents. The first appellate court tried the above said three applications along with the main appeal and finally allowed the applications and also allowed the first appeal and set aside the decree and judgment of the trial court and remanded back to the trial court for fresh disposal of the suit. 5. As against the above said remand order passed by the first appellate court, the 1st respondent herein filed Civil Miscellaneous Appeal in C.M.A. No. 1255 of 2004 before this Court. After hearing both sides, this Court has set aside the judgment and decree of the first appellate court including the order passed in I.A. No. 60 of 2003 and directed the first appellate court itself to dispose of the entire matter according to law and deal with the same. 6. After remand, during the pendency of the first appeal, the revision petitioner filed an application in I.A. No. 73 of 2009 under Order 26 Rule 9 and 151 CPC for appointment of Advocate Commissioner to ascertain the value of the suit property together with building and file a report. 6. After remand, during the pendency of the first appeal, the revision petitioner filed an application in I.A. No. 73 of 2009 under Order 26 Rule 9 and 151 CPC for appointment of Advocate Commissioner to ascertain the value of the suit property together with building and file a report. In the above said affidavit, the revision petitioner has stated that the revision petitioner had raised the objection regarding valuation and payment of Court fee and if the property valued properly, the trial court has no jurisdiction to try the suit and therefore, to determine the value of the property and also for determining the jurisdiction, it is necessary to appoint an Advocate Commissioner with the help of Engineer to value the property and hence, filed the above said application. 7. The 1st respondent has filed a detailed counter, in which, it is stated that the application itself is not maintainable, since the revision petitioner ought to have taken steps in respect of pecuniary jurisdiction before the trial court. Further, it is stated that the revision petitioner already had filed an application to ascertain the value of the suit property in I.A. No. 23 of 2008 which was dismissed on 06.11.2008. Now, again filed the present application in second time and therefore, it is hit under Section 11 CPC. Further, the revision petitioner filed another application to give evidence regarding the value of the property in I.A. No. 108 of 2008 and the above said application also already dismissed on 06.11.2008. After dismissal of the above said applications, the revision petitioner filed the present application for appointment of Commissioner and therefore, this application is not at all maintainable. Further, as per written statement itself the value of the suit property only stated as Rs. 35,000/- but, the pecuniary jurisdiction of the Munsif Court has been increased to Rs. 1,00,000/- and hence, the trial court has having power to decide the suit and therefore, prayed for to dismiss the above said application. 8. The trial court has considered the submissions of both sides and finally dismissed the above said application filed by the revision petitioner. 9. Aggrieved over the above said dismissal order passed by the trial court in I.A. No. 73 of 2009 this revision petition has been filed by the revision petitioner. 10. Heard the learned counsel appearing for both sides and perused the materials available on records. 11. 9. Aggrieved over the above said dismissal order passed by the trial court in I.A. No. 73 of 2009 this revision petition has been filed by the revision petitioner. 10. Heard the learned counsel appearing for both sides and perused the materials available on records. 11. The learned counsel appearing for the revision petitioner submitted that the above said application in I.A. No. 73 of 2009 was filed by the revision petitioner only as per the findings of this Court in C.M.A. No. 1255 of 2004 and therefore, the trial court ought to have allowed the above said application filed for appointment of Advocate Commissioner to find out the value of the suit property together with building thereon for proper adjudication and therefore, the order passed by the trial court is not valid in law. 12. Per contra, the learned counsel appearing for the respondent would submit that the original suit filed on 30.06.1997 and during the pendency of the suit, the revision petitioner has not taken any steps to appoint Commissioner to ascertain the value of the property. Further, the learned counsel pointed out that already I.A. No. 23 of 2008 and I.A. No. 108 of 2008 have been filed by the revision petitioner and both the applications have been dismissed. Therefore, the present application is not maintainable. 13. The point for consideration in this revision petition is whether the dismissal order passed by the first Appellate Court in I.A. No. 73 of 2009 is invalid in law. 14. Admittedly, the first respondent/plaintiff filed a suit for declaration and injunction in respect of S. No. 47/3E to an extent of 0.21.5 hectares described as agricultural land at the time of filing the suit. The revision petitioner/second defendant filed a written statement, in which, it is stated that the suit property has been used as house sites and market value of the properties is more than Rs. 30,000/- and therefore, the suit filed before the trial Court is not valid in law, since the above said Court has no jurisdiction to file the suit. Since the suit is decreed, the revision petitioner has preferred the first appeal in A.S. No. 6 of 2003. The first Appellate Court has set aside the decree and judgment passed by the trial Court and remanded the matter back to the trial Court for fresh disposal. Since the suit is decreed, the revision petitioner has preferred the first appeal in A.S. No. 6 of 2003. The first Appellate Court has set aside the decree and judgment passed by the trial Court and remanded the matter back to the trial Court for fresh disposal. Aggrieved over the above said remand order, the first respondent herein/plaintiff preferred C.M.A. No. 1255 of 2004. In the above said appeal, this Court passed on order on 07.09.2006 and observed the relevant portion in Para No. 2, which reads as follows: "2. There should be always endeavour to dispose of the case by the appellate Court itself, when the commissions and omissions made by the first Court could be corrected by the Appellate Court. In the case on hand, even if there is omission by the trial Court regarding determination of the value of the share purchased by the plaintiff, in the light of the above discussion coupled with the mandate provided under Order 41, Rules 23 and 27 the appellate Court itself can ascertain the value either by appointment of a Commissioner or by getting a report from the trial Court." 15. With the above said observation, this Court has set aside the decree and judgment passed by the First Appellate Court and directed the first Appellate Court itself to deal with the case in accordance with law. 16. As rightly pointed out by the learned counsel appearing for the respondent, after passing the order of this Court, dated 07.09.2006 in C.M.A. No. 1255 of 2004, the revision petitioner had filed two applications in I.A. No. 23 of 2008 and I.A. No. 108 of 2008 to ascertain the value of the suit property and also sought for permission to give evidence regarding the value of the property respectively. But, both the applications were dismissed on 06.11.2008. But, the revision petitioner has not taken any steps to set aside the above said dismissal orders and therefore, the above said orders become final. Long after the above said dismissal orders, only in the year of 2009, the revision petitioner has filed the present application in I.A. No. 73 of 2009 to appoint an Advocate Commissioner to ascertain the value of the property. Long after the above said dismissal orders, only in the year of 2009, the revision petitioner has filed the present application in I.A. No. 73 of 2009 to appoint an Advocate Commissioner to ascertain the value of the property. The First Appellate Court has considered the fact and dismissed by stating that the suit and appeal are pending for several years and during the pendency of the suit before the trial Court, the revision petitioner has not taken any steps regarding the value of the property. The learned counsel appearing for the respondent submitted that that the Court fee has been paid on the basis of the kist, since the suit property is an agricultural land and therefore, the contention of the revision petitioner cannot be accepted. 17. From the above said facts, it is revealed that by suppressing the earlier applications filed by the revision petitioner and dismissed by the First Appellate Court, he had filed the present application in I.A. No. 73 of 2009 on that ground alone this application is not maintainable. Further, no reason has been given by the revision petitioner for non filing of any application immediately after passing the judgment in C.M.A. No. 1255 of 2004. Further, the jurisdiction of the Munsif Court is also enhanced, as rightly pointed out by the learned counsel appearing for the respondent. The revision petitioner has not raised the question of jurisdiction and court fees by filing any application to try preliminary issue or to frame issue before the trial Court. In the above said circumstances, the order passed by the First Appellate Court in I.A. No. 73 of 2009 is valid in law and there is no need to interfere with the above said order. 18. In the result, this Civil Revision Petition is dismissed and the dismissal order passed by the first Appellate Court in I.A. No. 73 of 2009 is confirmed. No costs. Consequently, the connected Miscellaneous Petition is also closed.