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Madras High CourtCRP/1232/2012dismissed

G.Palanisamy v. K.Dhamodharasamy

2016-07-29Honourable Ms. Justice R.Mala6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.07.2016 CORAM :

THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).No.1232 of 2012 and M.P.No.1 of 2012 G.Palanisamy .. Petitioner/Plaintiff Vs.

K.Dhamodharasamy .. Respondent/Defendant Prayer:- Civil Revision Petition is filed under Article 227 of Constitution of India, against the fair and decreetal order dated 19.01.2012 made in I.A.No.1729 of 2011 in I.A.No.432 of 2009 in O.S.No.63 of 2002 on the file of the District Munsif Court, Palladam. For Petitioner : Mr.N.Manokaran

O R D E R

Civil Revision Petition is filed against the fair and decreetal order dated 19.01.2012 made in I.A.No.1729 of 2011 in I.A.No.432 of 2009 in O.S.No.63 of 2002 on the file of the District Munsif Court, Palladam.

2.Learned counsel for the petitioner submits that the petitioner as a plaintiff filed a suit in O.S.No.63 of 2002 for injunction. The respondent/defendant has filed a written statement and contested the suit. The respondent/defendant has filed an application in I.A.No.432 of 2009 for appointment of an Advocate Commissioner, in which, the Commissioner was appointed as per the order dated 07.08.2009. Due to non filing of report by the Commissioner, the said application was closed on 02.03.2011. It is further submitted that thereafter, the respondent/defendant has filed I.A.No.340 of 2011 for reopen the case and the same was dismissed on 04.03.2011, without challenging the same, the defendant filed a fresh application in I.A.No.1729 of 2011 for reopen the case in I.A.No.432 of 2009.

The trial Court, after hearing both sides, allowed the application. 3.Learned counsel further submits that without preferring the revision, the defendant has filed the application in I.A.No.1729 of 2011, only with a view to drag on the proceedings. Hence, he prays for setting aside the impugned order passed in I.A.No.1729 of 2011. 4.Even though the respondent was served, there is no representation on behalf of him.

5.Considered the submissions made by the learned counsel for the petitioner and perused the typed set of papers. 6.The petitioner as the plaintiff filed a suit for the following reliefs:

"(a) granting permanent injunction against the defendant restrained him, his men, menials, agents, assignees, servants, relations, family members and any other persons acted upon behalf of him from in anyway interfering with the plaintiff's peaceful possession and enjoyment of the item No.1 and 2 of the suit property, more particularly from in any way demolishing, damaging, encroaching the plaintiff's exclusive north south wall situated on the eastern boundary of the item No.2 of the suit property and;

(b) award the costs of the suit."

7.The respondent/defendant has filed a written statement and contested the suit. He also filed I.A.No.432 of 2009 for appointment of an Advocate Commissioner, in which, the Commissioner was appointed, as per the order dated 07.08.2009. Since the Commissioner has not filed his report and plan, the said application in I.A.No.432 of 2009 was closed on 02.03.2011.

8.Immediately, the respondent/defendant has filed I.A.No.340 of 2011 for reopen the case and the same was dismissed on 04.03.2011. Admittedly, he has not preferred any revision against the said order, but he has filed the present application in I.A.No.1729 of 2011 for reopen the case in I.A.No.432 of 2009. In the said application, the trial Court has held that non filing of the revision against the impugned order passed in I.A.No.340 of 2011 is not hit by resjudicata and so the defendant is entitled to file the fresh application. Further, the trial Court has held that at the time of filing the application in I.A.No.340 of 2011, the Commissioner has not filed his report with plan. At the time of filing I.A.No.1729 of 2011 only, the Commissioner's report and plan have been filed and on that basis only, the said application was allowed.

9.Considering the aforestated facts and circumstances of the case, I am of the view, the reason assigned by the trial Court does not warrant any interference and the impugned order passed in I.A.No.1729 of 2011 is hereby confirmed. Therefore, the Civil Revision Petition is dismissed as devoid of merits and it is hereby dismissed. Both the parties are directed to bear their own costs. Since the suit has been pending from the year 2002, the trial Court is directed to

dispose of the same within three months from the date of receipt of a copy of this order. Consequently connected Miscellaneous Petition is closed.

29.07.2016 kj To The District Munsif Court, Palladam.

R.MALA,J.

kj C.R.P(PD).No.1232 of 2012 and M.P.No.1 of 2012 29.07.2016