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Madras High CourtCRP/3434/2016dismissed

Subramanian v. Palanisamy

2016-11-08Honourable Mr Justice K.K. Sasidharan5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.11.2016

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN CRP (PD) NO.3434 OF 2016 1.Subramanian 2.Venkatachalam ...

Petitioners

Versus

Palanisamy ...

Respondent PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 10.06.2015 made in I.A.No.16 of 2015 in O.S.No.1247 of 2004 on the file of the Second Additional District Munsif Court, Salem. For Petitioners :

Mr.N.Manokaran

O R D E R

The respondent filed a suit in O.S.No.1247 of 2004 before the District Munsif Court, Salem, praying for a decree of declaration and injunction. The suit was contested by the petitioners by filing written

statement. The Trial Court appointed an Advocate Commissioner to inspect the suit schedule property at the instance of the petitioners. The Advocate Commissioner submitted his report. There was a request at the instance of the petitioners again to remit the report to the Advocate Commissioner and inspect the property afresh. The application was dismissed. The said order was uphold by this Court in CRP No.1738 of 2005.

2. The petitioners, after the commencement of the trial, filed a fresh application in I.A.No.16 of 2015, for appointing an Advocate Commissioner to note down the newly erected wall with the help of a qualified surveyor. The application was dismissed by the Trial Court taking into account the earlier proceedings and the orders passed by this Court in CRP No.1738 of 2005. The said order is under challenge in this Civil Revision Petition.

3. The learned counsel for the petitioner submitted that the petitioners earlier filed an application for appointment of an Advocate Commissioner and the same was allowed by the Trial Court. The subsequent request to remit the report to the Advocate Commissioner and inspect the property afresh was negatived by the Trial Court and

the same was upheld by this Court. According to the learned counsel, the construction put up by the petitioners was not taken note of by the Advocate Commissioner and that was the reason for filing fresh application.

4. There is no dispute that at the instance of the petitioners, Advocate Commissioner was appointed by the Trial Court. The Advocate Commissioner submitted his report after inspection. The request made by the petitioners to remit the report to the Advocate Commissioner and inspect the property afresh was negatived by the Trial Court. The said order was unsuccessfully challenged before this Court in CRP No.1738 of 2005.

5. It is a matter of record that only after the commencement of trial, the petitioners filed an application in I.A.No.16 of 2015. It is also a matter on record that even the Advocate Commissioner appointed by the Trial Court earlier was cross examined by the petitioners. There is no question of issuing a fresh commission to note down the newly erected wall with the help of a qualified surveyor at a later point of time and that too, after attaining finality to the earlier proceedings on account of the dismissal of CRP No.1738 of 2005. I am

therefore of the view that the learned Trial Judge was perfectly correct in dismissing the application. I do not find any error or illegality in the order passed by the learned Trial Judge warranting exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

6. In the upshot, I dismiss the Civil Revision Petition. No costs.

08.11.2016 TK To The Second Additional District Munsif Salem.

K.K.SASIDHARAN, J.

TK CRP (PD) NO.3434 OF 2016 08.11.2016 http://www.judis.nic.in