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2017 DIGILAW 2726 (MAD)

M. Zeenath Begam v. P. Pattaye

2017-08-18

T.RAVINDRAN

body2017
ORDER : 1. The suit in O.S.No.449 of 2017 has been laid by the plaintiffs for permanent injunction restraining the first defendant to stop the ongoing building construction work in the suit B-Schedule property until getting due building plan approval and building permission as mandated under law from the defendants 2 and 3 and after getting such permission not to violate the building plan permission in anyway particularly without leaving the open space on all four sides of the construction and for mandatory injunction directing the defendants 2 and 3 not to allow the first defendant to construct the new building construction in the suit B-Schedule property without getting building permission and particularly without leaving any prescribed open space on all the four sides of the building even after getting due building permission and also for mandatory injunction directing the first defendant to remove the drainage pipe line installed further on the southern boundary limit of her suit B-Schedule property encroaching into the plaintiffs' suit ASchedule property forthwith and on failure to do so cause removal of it through Court Amin at the cost of the first defendant. 2. Pending suit, it is seen that the plaintiffs have preferred an application I.A.No.404 of 2017 seeking an order of ad interim injunction as regards the relief-B sought for in the main suit. It is, therefore, found that the plaintiffs endeavour is to seek the main relief itself sought for in the suit by way of the application preferred in I.A.No.404 of 2017. I.A.No.403 of 2017 has been preferred by the plaintiffs seeking for an order appointing an Advocate Commissioner and directing him to note down all the features and existing stage of the ongoing construction work in the suit B-Schedule property of the revision petitioner/first defendant and also to take necessary measurements and to file a report and plan. It is found that the Commissioner's application was resisted by the revision petitioner/first defendant. However, it is seen that the Court below was pleased to appoint an Advocate Commissioner with a direction to him to inspect the suit properties with the help of the qualified surveyor and file a report in the Court. The above said order is seen to have been passed on 12.06.2017. However, it is seen that the Court below was pleased to appoint an Advocate Commissioner with a direction to him to inspect the suit properties with the help of the qualified surveyor and file a report in the Court. The above said order is seen to have been passed on 12.06.2017. In this situation, it is to be noted that for the relief of the appointment of the Advocate Commissioner, the plaintiffs after alleging certain violations said to have been committed by the revision petitioner in putting up the construction in the suit B-Schedule property without obtaining due plan and building permission from the defendants 2 and 3, have also pleaded that the revision petitioner/first plaintiff has put up the concrete pillars to raise her building exactly on the southern limit of her suit B-Schedule property, which is not legally permissible as no vacant open air space is left and it will cause injury in the enjoyment of the adjoining property owners and in order to make known the existing initial stage of the construction and such violation of the building rules prescribed that are made in the suit site, the inspection by an Advocate Commissioner to note down all the features and taking necessary measurements of the B-Schedule property are essential to decide the case and hence, prayed for the appointment of an Advocate Commissioner. Therefore, it is found that even according to the plaintiffs, only on the inspection of the property concerned by the Advocate Commissioner it could be ascertained as such as to whether the revision petitioner/first defendant has put up construction in her property in violation of the building rules so as to cause detriment and injury to the enjoyment of the adjoining property owners, particularly, the plaintiffs. As adverted above, the relief sought for by the plaintiffs in I.A.No.404 of 2017 is akin to the relief – B sought for in the plaint. In such view of the matter, it is impliedly admitted by the plaintiffs that the Commissioner's report and plan sought for by them in I.A.No.403 of 2017 are essential to decide the relief sought for in I.A.No.404 of 2017. 3. In such view of the matter, it is impliedly admitted by the plaintiffs that the Commissioner's report and plan sought for by them in I.A.No.403 of 2017 are essential to decide the relief sought for in I.A.No.404 of 2017. 3. In such view of the matter, it is found that after the appointment of the Advocate Commissioner, inasmuch as the Court had endeavoured, according to the revision petitioner, to proceed with I.A.No.404 of 2017, it is the case of the revision petitioner that she has been necessitated to lay an application in I.A.No.437 of 2017 for a limited relief i.e., to stay the further proceedings of the application in I.A.No.404 of 2017 till the filing of the report by the Advocate Commissioner. The revision petitioner has pleaded in the said application that inter alia the Court has no jurisdiction at all to stop the ongoing construction work in her property and also the Court has no jurisdiction to direct the defendants 2 and 3 to stop her construction work inasmuch as her application for permission is pending before them and they are the competent authorities to decide the issues/disputes involved in the matter and the same cannot be prevented by the plaintiffs in the guise of filing an application in I.A.No.404 of 2017 and also pleaded that inasmuch as the Court has ordered the appointment of the Advocate Commissioner and as the Court had felt that the report of the Commissioner is essential to decide the issues involved in the matter as put forth by the plaintiffs, according to her, only on the filing of the report by the Advocate Commissioner the Court should take up the further enquiry in I.A.No.404 of 2017 and hence, prayed for limited stay in the application i.e., in I.A.No.437 of 2017. 4. The said application was resisted by the plaintiffs on the footing that in the guise of the above said application, the revision petitioner is attempting to complete the construction work in her property, which cannot be entertained and inasmuch as the ongoing construction work of the revision petitioner is unlawful and without necessary approval, the same is to be stalled and hence, the Court should direct the defendants 2 and 3 to act in furtherance of the same. 5. 5. The Court below, on a consideration of the rival contentions put forth by the respective parties was pleased to dismiss the said application preferred by the revision petitioner and aggrieved over the same, the present civil revision petition has come to be laid. 6. In this civil revision petition, it is contended by the learned counsel for the revision petitioner that the Court below is not justified in dismissing the application for the limited stay and further, according to him, when as per the case of the plaintiffs the Commissioner's report is essential for deciding the issues involved in the suit and when they had endeavoured to seek the main relief itself sought for in the suit by way of the application preferred in I.A.No.404 of 2017 and when such being the case, when further according to him, the revision petitioner has put up the construction in her property only in accordance with the rules and also following the mandatory requirements and that apart, her application for necessary approval is also pending with the concerned authorities, namely, the defendants 2 and 3, according to him, the Court should have granted the limited stay of the proceedings in I.A.No.404 of 2017 until the report of the Advocate Commissioner is filed. Further, according to him, the Court has adopted a special pleading for favouring the plaintiffs while dismissing her application for limited stay and this attitude of the Court below would only go to show that the Court below is hellbent upon deciding the application in I.A.No.404 of 2017 in favour of the plaintiffs. Further, according to him, the Court below has also no competency or jurisdiction to give direction to the defendants 2 and 3 to stop the construction work of the revision petitioner in the B-Schedule property, particularly, when the application of the revision petitioner seeking for necessary building permission and approval is pending with the said authorities. Therefore, according to him, the civil revision petition is to be entertained and prays the Court to pass necessary orders in the civil revision petition to meet the ends of justice. 7. Therefore, according to him, the civil revision petition is to be entertained and prays the Court to pass necessary orders in the civil revision petition to meet the ends of justice. 7. Per contra, it is argued by the learned counsel for the respondents 1 and 2/plaintiffs that the revision petitioner is putting up a construction in her property without necessary plan and approval and the same has also been the plea of the defendants 2 and 3 in their counter and therefore, in the guise of the limited stay, as the revision petitioner wants to complete the her construction in violation of the rules, the Court is justified in dismissing the said application and proceeding with the application filed by the plaintiffs in I.A.No.404 of 2017. 8. The learned counsel appearing for the respondents 3 and 4/defendants 2 and 3 would submit that the building plan submitted by the revision petitioner is found to be in violation of the building rules and in this connection, a notice has been issued to the revision petitioner informing about the pendency of the suit in O.S.No.449 of 2017 and also informing that on the basis of the final Judgment to be passed in the suit, necessary action would be instituted against her. In this connection, the learned counsel for the respondents 3 and 4/defendants 2 and 3 also submitted a copy of the letter sent to the revision petitioner in this Court. The contents of the said letter are found to be in the same line of the submissions made by the learned counsel for the respondents 3 and 4/defendants 1 and 2. 9. A perusal of the impugned order would go to show that the Court below has dismissed the stay application preferred by the revision petitioner mainly on the ground that the Advocate Commissioner appointed in I.A.No. 403 of 2017 has already filed an interim report and in the said interim report, he has informed that as alleged by the plaintiffs, the revision petitioner is putting up new construction to the south of the A-Schedule property belonging to the plaintiffs and further, according to the Court below inasmuch as the revision petitioner as such has not obtained the approval for the construction, the stay sought for by the revision petitioner cannot be accepted and dismissed the application. The copy of the impugned order passed by the Court below has been filed in the additional typed set of papers submitted by the learned counsel for the revision petitioner. Pointing to the above said fact, it is strenuously argued by the learned counsel for the revision petitioner that the Advocate Commissioner appointed in I.A.No.403 of 2017 has till date not visited the property concerned as such and therefore, the finding of the Court below that the Advocate Commissioner has filed an interim report informing that the revision petitioner has been putting up construction to the south of A-Schedule property of the plaintiffs is false and therefore, it is argued by him that their apprehension that the Court below is endeavouring to dispose of I.A.No.404 of 2017 in favour of the plaintiffs at their instance is justified and accordingly, the Court below has also taken a special pleading as above in favour of the plaintiffs for declining the stay sought for by the revision petitioner and hence, on the above sole ground, the impugned order is liable to be set aside. In this civil revision petition, the learned counsel for the plaintiffs has also not controverted the fact that the Advocate Commissioner has sofar not visited the property concerned. In such view of the matter, it is found that the Advocate Commissioner has not filed any interim report in the Court as stated by the Court below in the impugned order. In view of the above said position, it has not been explained as to on what basis or material, the Court has observed or given a finding that the Commissioner has filed an interim report alleging that the revision petitioner has been putting up a new construction to the south of A-Schedule property belonging to the plaintiffs and this would go to show that the apprehension of the revision petitioner that the Court below has adopted a special pleading in passing the impugned order in favour of the plaintiffs cannot be easily discountenanced. 10. 10. That apart, when it is already found that even according to the plaintiffs, the report of the Advocate Commissioner is very much essential and material for deciding the issues involved in the matter and when it is seen that the relief sought for by the plaintiffs in I.A.No.404 of 2017 is similar to the relief – B sought for in the main suit, it is seen that when the Court has even after accepting the claim of the plaintiffs had appointed the Advocate Commissioner to inspect the property concerned with the help of the Surveyor and file a report and plan, it is to be noted that the Court below was also of the view that the report of the Commissioner is vital and material for deciding the issues involved in the matter. In such view of the matter, when even according to the plaintiffs as well as even according to the determination of the Court below as per the order passed in I.A.No.403 of 2017, the report of the Advocate Commissioner is material for deciding the issues involved in the suit, when one such relief is asked for in I.A.No.404 of 2017, in my considered opinion, the Court should have instead of immediately proceeding with the enquiry in I.A.No.404 of 2017, should have directed the Advocate Commissioner to inspect the property immediately and file a report along with plan within a particular period of time so as to enable the Court to proceed with the enquiry in I.A.No.404 of 2017. On the other hand, it is found that the Court has adopted a special pleading, which is found to be incorrect, and rejected the stay application filed by the revision petitioner for a limited period. In this connection, the learned counsel for the plaintiffs contended that the revision petitioner in the guise of the stay application is only attempting to accomplish her construction in the property belonging to her illegally and if the same is allowed to continue without necessary orders in I.A.No.404 of 2017, the plaintiffs would be put into irreparable loss and hardship and the Court should also take into consideration the same. In this connection, it is to be noted that even according to the revision petitioner her application for necessary sanction of permission and plan approval is pending with the concerned authorities, namely, the defendants 2 and 3 and it is not clear as to whether the said application has been disposed of by the concerned authorities by this point of time. Be that as it may, as seen above, the revision petitioner has also taken a plea in I.A.No.404 of 2017 that the Court below has no jurisdiction to give a direction to the defendants 2 and 3 to stop the construction put up by the revision petitioner without disposing of her application for necessary approval and plan pending with the said authorities. 11. In the light of the above discussions, in my considered view, the impugned order passed by the Court below cannot be sustained as such since the same has come to be passed not on true facts, but on the assumption that the Commissioner has filed the interim report, however the fact remains that the Commissioner has not filed any report at all and the fact further remains that till date, the Commissioner has not inspected the property concerned. Therefore, it is seen that the impugned order is liable to be set aside for the reasons aforementioned. 12. In fine, the fair and decreetal orders, dated 01.07.2017, passed in I.A.No.437 of 2017 in I.A.No.404 of 2017 in O.S.No.449 of 2017, on the file of the District Munsif Court, Tiruchirappalli District, are set aside and the Court below, either on receipt or on production of a copy of this order by either of the parties concerned, is directed to command the Advocate Commissioner to inspect the suit property along with the surveyor immediately and file a report and plan within a period of one week and thereafter, on the receipt of the Commissioner's report and plan proceed with the enquiry in I.A.No.404 of 2017 and dispose of the same in accordance with law as expeditiously as possible. Accordingly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.