Vasudevan v. Sri Karyam Swami
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR CRP.No.372/2019 & CMP.No.2616/2019 [Video Conferencing] Vasudevan .. Petitioner Vs.
Sri Karyam Swami .. Respondent Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the order dated 16.11.2018 made in I.A.No.176/2017 in O.S.No.58/2007 on the file of the learned Hon'ble District Munsif Court, Vandavasi. For Petitioner :
Mr.A.Ilayaperumal For Respondent :
M/s.R.Ramya
ORDER
(1) This Civil Revision Petition is directed against the order in I.A.No.176/2017 in O.S.No.58/2007 on the file of the learned District Munsif Court, Vandavasi, Thiruvannamalai District.
(2) Brief facts that are necessary for disposal of this Civil Revision Petition are as follows:
(3) The revision petitioner is the plaintiff in the Suit in O.S.No.58/2007. The Suit filed by the plaintiff is against the respondent Mutt. The Suit property is a temple viz., Ameerthavalli Nayina Sametha Sri Yogantharulimma Swami Thirukoil, in Sokatthur Village, Vandavasi Taluk, Thiruvannamalai District. The Suit is for a declaration that the Suit temple is not a temple belongs to Sri Aghobadi Mutt, comes under the administration of the defendant.
(4) The written statement was filed by the Mutt/defendant in the Suit in O.S.No.58/2007 holding exclusive ownership and title over the temple which was described in the plaint.
It is stated that the temple is one of the hundreds of temple maintained and administrated by the defendant, Mutt.
(5) After the written statement was filed, the petitioner/plaintiff filed an application in I.A.No.176/2017 for appointment of an Advocate Commissioner to inspect the Suit property in O.S.No.58/2007 to identify the Suit property with reference to survey number and measurements etc. The said application was contested by the respondent/defendant. The Trial Court dismissed the application mainly on the ground that the application for appointment of an Advocate Commissioner lacks bona fides. Unfortunately, the Trial Court relied upon the judgment of this Court in Chandrasekharan Vs. Doss Naidu reported in 2005 (3) MLJ 473 wherein it is stated that an appointment of Advocate Commissioner cannot be allowed to find out the factum of possession. It is to be noted that the said judgment cannot be applied to the facts of the present case. However, the application filed by the revision petitioner/plaintiff has no merit. Order VII Rule 3 clearly reads as follows:
"where the subject matter of the Suit is immovable property, the plaint shall contain a description of the property sufficient to identify it"
(6) It is seen that the petitioner/plaintiff filed the plaint in O.S.No.58/2007 without describing the Suit property as expected under Order VII Rule 3 and has now come forward with an application to appoint an Advocate Commissioner to note down the physical features and to get the particulars of the property so that it can be described properly in the plaint. The petitioner/plaintiff who is expected to disclose the minimum facts in the plaint cannot seek the aid of Court to describe the very subject matter of the Suit.
(7) The object behind under Order VII Rule 3 would be defeated in case the application in I.A.No.176/2017 filed by the petitioner/plaintiff for appointment of an Advocate Commissioner to help the petitioner/plaintiff to describe the property more particularly with reference to the survey number and measurements and etc., is allowed. This Court find no merit in the Civil Revision Petition. The Commissioner cannot be appointed to collect evidence even to complete the pleading.
(8) In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar cda To The Hon'ble District Munsif Court, Vandavasi. +1cc to M/s.R.Ramya, Advocate, S.R.No.60551 +1cc to Mr.A.Ilayaperumal, Advocate, S.R.No.60785 CRP.No.372/2019 NK(CO) CT 08/12/2021