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2023 DIGILAW 1717 (MAD)

V. Ganesan v. Kamal Jain

2023-04-18

S.NAGAMUTHU

body2023
JUDGMENT (Prayer: Civil Revision Petition filed under Article 227 of the Consitution of India, to set aside the fair order and decretal Order dated 21.1.2013 in I.A. No.2177 of 2012 in O.S. No.332 of 2010 on the title of the learned Additional District Munsif, Alandur.) 1. The petitioner is the Plaintiff in O.S. No.332 of 2010 on the file of the learned Additional District Munsif, Alandur. The Respondents are the Defendants in the said Suit. The Petitioner has filed the said Suit for Permanent Injunction, to restrain the Defendants from in any manner interfering with his alleged peaceful possession and enjoyment of the Suit Property. But, the defendants in their Written Statement have stated that a part of the Suit Property was being used as a pathway by the Defendants to go over to their land. The Defendants, therefore, filed Interlocutory Application in I.A. No.59 of 2012, for appointment of an Advocate Commissioner to make local inspection of the Suit property and to submit Report. The Commissioner visited the Suit property and a submitted a Report. The Petitioner/ Plaintiff has filed an objection to the said Property. 2. Thereafter, the Petitioner has filed an Interlocutory Application in I.A. No.2177 of 2012 seeking re-issuance of Commissioner’s Warrant either to the same Commissioner or to appoint an Advocate Commissioner, with a direction to the Commissioner to measure the Suit property with the help of a Surveyor and to submit an Additional Report. The said Interlocutory Application was dismissed by the Lower Court, by an order dated 21.1.2013, Challenging the same, the Petitioner is before this Court with this Civil Revision Petition. 3. I have heard the learned Counsel on either side and I have also perused the records carefully. 4. The learned Counsel for the Petitioner would submit that at the time when the Commissioner originally visited the property in pursuance of the warrant issued in I.A. No.59 of 2012, the property was not identified by the Petitioner/ Plaintiff. Further according to the Petitioner, the Commissioner has not located the so called pathway. Therefore, according to him, in order to ascertain as to whether there is really any pathway and whether it forms part of the Suit property, the measurement of the Suit property with the help of Surveyor is absolutely necessary. 5. The learned Counsel for the Respondents would stoutly oppose this Revision. Therefore, according to him, in order to ascertain as to whether there is really any pathway and whether it forms part of the Suit property, the measurement of the Suit property with the help of Surveyor is absolutely necessary. 5. The learned Counsel for the Respondents would stoutly oppose this Revision. According to him, without scraping the earlier Commissioner’s Report, in law there is no possibility for re-issuing the Commissioner’s Warrant. In order to substantiate the said contention, the learned Counsel has relied on a Judgment of this Court in B. Sivasubramanian v. S. Balamurugan, 2006(2) CTC 54 . The learned Counsel further submitted that the Commissioner’s Report satisfies all the requirements and there is no flaw in the same. Therefore, according to him, the Lower Court was right in dismissing the Interlocutory Application. 6. I have considered the above submissions. 7. A perusal of the Pleadings of both parties will make it clear that the there is an issue as to whether the pathway really forms part of the Suit property. Of course, the Commissioner in his earlier report has submitted that there is a pathway. That is very seriously objected to by the Petitioner/Plaintiff. But, the Commissioner did not have the benefit of measuring the Suit Property and give a specific finding as to whether the so called pathway forms part of the Suit property or not. Apart from that, at the time the Commissioner visited the property, the Petitioner was not present to identify the Suit property. In such circumstances, in my considered opinion, it will be appropriate to request the very same Commissioner to measure the Suit property with the help of Surveyor and to file a Supplemental Report. 8. Of Course, it is true that in the normal course, without scraping the earlier Report for defects, it is not possible to appoint a Commissioner for the same purpose. But here, the earlier Commissioner’s Report need not be scrapped because by re-issuing the warrant, the Commissioner is directed only to submit an Additional Report. Thus, both Reports will be on the file of the Court. But here, the earlier Commissioner’s Report need not be scrapped because by re-issuing the warrant, the Commissioner is directed only to submit an Additional Report. Thus, both Reports will be on the file of the Court. Above all, a perusal of the impugned order of the Lower Court would go to show that the Lower Court has dismissed the Interlocutory Application on the ground that the present Application was filed when the Interlocutory Application for Temporary Injunction was under consideration and also because the earlier Commissioner Report was available. 9. In my considered opinion, this reasoning cannot be accepted at all for the reason that the Commissioner’s Report is mainly for the purpose of resolving the issues in the Suit. May be not that the Commissioner’s Report can be used at the interlocutory stage. But, simple because, the Interlocutory Application for injunction is in progress, the request for re-issuance of Commissioner’s warrant should not have been rejected. Thus, the reason stated by the learned Additional District Munsif, Alandur, for the dismissal of the Interlocutory Application is not at all acceptable. For the foregoing reasons, I am inclined to interface with the order of the Lower Court. 10. In the result, this Civil Revision Petition is allowed, in the following terms: i. The order of the Lower Court Dated 21.1.2013 is set aside. ii. The I.A. No. 2177 of 2012 stands allowed, with a direction to the Lower Court to nominate an Advocate of local bar with considerable experience, with a direction to him to measure the Suit property with the help of Taluk Surveyor and to submit a Report. iii. The Commissioner fee shall be fixed by the Lower Court, which shall be paid by the Petitioner herein. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs.