Subash Jain v. P.Kathiravan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.12.2022

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN CRP.No.1884 of 2015 and M.P.No.1 of 2015 Subash Jain ..Petitioner Vs.

1.P.Kathiravan 2.S.Sundaram ..Respondents Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order dated 20.02.2015 passed in Unnumbered I.A.No. /2014 in O.S.No.363 of 2013 on the file of the II Additional Sub-Judge, Salem and allow the CRP.

For Petitioner : Mr.R.Nalliayappan For Respondents : Mr.T.S.Vijaya Raghavan

ORDER

The civil revision petition has been filed as against the order dated 20.02.2015 passed in Unnumbered I.A.No. Of 2014 in O.S.No.363 of 2013 on the file of the II Additional Sub-Judge, Salem, thereby returning the application filed for appointment of Advocate Commissioner. 1/4

2. Heard both side and perused the materials available on record.

3. The petitioner is the plaintiff. He filed a suit for declaration and recovery of possession and also sought for mandatory injunction to remove the superstructure put up by the respondents. Pending suit, the petitioner filed an application in I.A.No.316 of 2013 to appoint an Advocate Commissioner and the same was allowed. However, the Advocate Commissioner did not visit the property and complete the warrant and hence, it was closed.

4. Again in the year 2014, the petitioner filed an application for appointment of Advocate Commissioner to visit the property and note down the physical features and measure the same as per the sale deed dated 14.05.1984 with the qualified firka surveyor and to fix the boundaries. However, it was returned without numbering the same by the trial Court. Therefore, it was represented and have been found it was returned again for the reason that already I.A.No.316 of 2013 was allowed by the trial Court by an order dated 05.08.2014. Therefore, if aggrieved by the said order, the petitioner ought to have approached the Appellate Court.

2/4

5. It is seen that without even numbering the petition filed by the petitioner seeking appointment of an Advocate Commissioner, it was returned for the reason already filed petition for appointment of Advocate Commissioner and the same was allowed by an order dated 05.08.2014 in I.A.No.316 of 2013 especially, when the warrant of appointment issued to the earlier Advocate Commissioner having been closed. Without even numbering the application, the trial Court ought not to have returned the application for the reason mentioned in the return endorsement.

6. In view of the above, the order dated 20.02.2015 passed in Unnumbered I.A.No. Of 2014 in O.S.No.363 of 2013 on the file of the II Additional Sub-Judge, Salem, is hereby set aside. The petitioner is permitted to re-present the application for appointment of Advocate Commissioner and the trial Court is directed to number the same and pass orders on merits in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.

07.12.2022 Speaking/Non-speaking order Index : Yes/No ata 3/4

G.K.ILANTHIRAIYAN.

J, ata To The II Additional Sub-Judge, Salem.

CRP.No.1884 of 2015 07.12.2022 4/4