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2018 DIGILAW 3931 (MAD)

K. Seenivasan v. K. Muthukumar

2018-10-24

R.THARANI

body2018
JUDGMENT R. THARANI, J. 1. Heard Mr. K. Guhan, learned counsel appearing for the petitioner and Mr. P.T.S. Narendravasan, learned counsel appearing for the respondents 1 and 2. 2. This petition has been filed to set aside the order and decreetal order dated 07.03.2015 made in I.A.No.64 of 2014 in O.S.No.9 of 2013 on the file of the learned District Judge, Sivagangai. 3. The petitioners herein are the defendants and the respondent herein is the plaintiff in the suit. The respondent herein has filed a suit in O.S.No.9 of 2013 seeking for a prayer of specific performance and for delivery of possession and for directing the petitioners to pay the advance amount of Rs. 42,00,000/- (Rupees Forty Two Lakhs only) and the further part payments of the sale consideration with future interest at 12% interest per annnum on Rs. 31,05,500/- (Rupees Thirty One Lakhs Five Thousand and Five Hundred only) from the date of plaint till the date of realization. The respondent filed a petition in I.A.No.64 of 2014 for the appointment of a Advocate Commissioner to inspect the suit properties and to note down the physical features. The petiton was allowed by the trial Court. Against the order, the petitioners have filed the present petition before this Court. 4. The case of the petitioners is that appointment of the Advocate Commissioner to note down the physical features is unwarranted. This suit is for specific performance on the basis of Registered sale deed dated 21.01.2008. The petitioners received only Rs. 5,00,000/- (Rupees Five Lakhs only) on various dates and the suit first item property was mortgaged to one S.P.J. Bricks and item 3 is a punja land. So far item 2 and 3 are concerned, the time limit is one year and the same expired on 20.01.2009 itself and the claim of the respondent is hit by law of limitation and there is no necessity for the Advocate Commissioner to be appointed. 5. On the side of the petitioners, it is stated that the suit is for specific performance. A registered sale agreement was executed on 21.01.2008. The petitioner received a sum of Rs. 1,00,000/- (Rupees One Lakh only) by way of advance. Another sale agreement was entered into between the parties on the same day with regard to suit property item Nos.2 and 3 and the petitioners received a sum of Rs. A registered sale agreement was executed on 21.01.2008. The petitioner received a sum of Rs. 1,00,000/- (Rupees One Lakh only) by way of advance. Another sale agreement was entered into between the parties on the same day with regard to suit property item Nos.2 and 3 and the petitioners received a sum of Rs. 51,000/- (Rupees Fifty One Thousand only) by way of advance. An unregistered sale agreement dated 21.01.2008 is executed combining all the items of the suit properties at the rate of Rs. 19,000/- (Rupees Nineteen Thousand only) per cent and the petitioners received a sum of Rs. 6,50,000/- (Rupees Six Lakhs and Fifty Thousand only) by way of advance. The petitioners have executed an usufructory mortgage with regard to Item no.1 to one S.P.J.Bricks represented by its partner on 19.07.2004 by way of an Othi deed. Due to the dumpting of sand, etc, the property could not be measured at the time of the sale agreement. The total area of the suit property is 2 acres 21 cents and 61 sq.ft and the total consideration comes to Rs. 42,01,660/- (Rupees Forty Two Lakhs One Thousand and Six Hundred and Sixty only). The petitioners received a sum of Rs. 31,05,500/- (Rupees Thirty Lakhs Five Thousand and Five Hundred only) by way of advance. The cost of the land which become deficit at the time of measuring the suit properties is to be deducted from the above said balance sale consideration. The respondent undertake to pay the balance sale consideration after measuring the suit properties. 6. On the side of the petitioners, it is stated that it is wrong to stated that the agreement period is five years. Only one year time was given and the time is lapsed now. Only item 2 and 3 are measured before the date of agreement. After the lapse of time, a notice was sent as if the time limit was five years. The second schedule property is a house site, the third suit property is a punja land and the properties were leased by the petitioners. The appointment of the Commissioner is not at all necessary. Only the readiness and the willingness of the respondent has to be proved in the specific performance case. 7. The second schedule property is a house site, the third suit property is a punja land and the properties were leased by the petitioners. The appointment of the Commissioner is not at all necessary. Only the readiness and the willingness of the respondent has to be proved in the specific performance case. 7. The learned counsel appearing for the petitioners relied on the Judgment passed by this Court in the case of Ambrose and another v. Neelamegam reported in, (2009) 1 CTC 350 , which reads as follows: "The suit is to be decided on the issues I.e., whether the sale agreement is validly executed and the plaintiff is ready and willing to perform his part of the contract. That being so, the application taken out by the petitioners/defendants to value the property is not relevant and germane to the issue." 8. The learned counsel appearing for the petitioners relied on the Judgment passed by this Court in the case of K.M.A. Wahab and 5 others v. Eswaran and another reported in, (2008) 3 CTC 597 , which reads as follows: "Advocate Commissioner cannot be appointed to collect evidence to find out factum of possession ? no prejudice will be caused to other side is not at all relevant factor." 9. The learned counsel appearing for the petititoners relied on the Judgment passed by this Court in the case of R. Justin Arulappa v. R.Xavier Arulappa and another reported in, 2010 1 MWN 840, which reads as follows: "It cannot mechanically appoint an Advocate Commissioner without focusing attention as to what are the questions of dispute and whether for deciding disputed question the appointment was necessary." 10. The learned counsel appearing for the petitioner relied on the Judgment passed by this Court in the case of R.Justin Arulappa v. R. Xavier Arulappa and another, (2009) 5 LW 711 , which reads as follows: "But, in this case, utter disregard to the above said principles, the Court below had appointed an Advocate Commissioner to make local investigation as requested by the first respondent without even considering whether such issuance of commission is warranted at this stage." 11. On the side of the respondent, it is stated that two sale agreements were entered on 21.01.2008 and five years time was fixed for the execution of the sale deed. On the side of the respondent, it is stated that two sale agreements were entered on 21.01.2008 and five years time was fixed for the execution of the sale deed. The first item of the property was leased out to one S.P.J. Bricks works and theu dumped soil upto 30 feet on the suit first item of the property and the first item of the suit property was not measured due to stocking of the soil. Question of limitation cannot be decided in the petition as the same is to be decided in the trial. The Advocate Commissioner is to be appointed to find out the measurement of the land so that the respondent can deposit the balance sale consideration and that the citations referred by the petitioners is not applicable to this case. 12. Records perused. This case is for specific performance of a sale agreement. The claim of the petitioners is that the suit is bared by limitation and an Advocate Commissioner cannot be appointed for gathering the evidence. The appointment of the Advocate Commissioner will further delay the trial. The question of limitation can be decided only after the trial by the lower Court. 13. It is further stated that the order of appointment of the Advocate Commissioner cannot be passed mechanically. But in this case, the contention of the respondent is that he wanted the Advocate Commissioner to measure the property so that he can deposit the balance sale consideration in the Court. In the specific performance suit, the main question to be decided is the readiness and willingness of the plaintiff. To prove the readineess and willingness, the petitioners have to deposit the sale consideration before the trial Court. 14. In the above circumstances, the appointment of the Commissioner is necessary and the appointment of the Advocate Commissioner will not in any way prejudice the rights of the respondent herein. Hence, there is nothing sufficient enough to interfere with the order passed by the trial Court. Hence, this Civil Revision Petition is dismissed. No Costs. Consequently, M.P.(MD) No.1 of 2015 is closed.