Shanmugavalli(Died) v. N.Seeniammal(Died)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN C.M.P.(MD)No.10991 of 2021 Shanmugavalli (Died)
1. Natarajan
2. Amaravathi
3. Mahalakshmi
4. Muthu
5. Bose
6. Ganapathi ... Appellants / Respondents 4 to 9/ Legal heirs of 1st Defendant Vs.
N.Seeniammal (Died)
1. MN.Muthiah
2. N.Meenakshi ... Respondents / Appellants / Plaintiffs
3. M.Murugayee @ Ammapillai
4. Madasamy Nadar ... Respondents / Respondents 2 & 3/ Defendants 2 & 3 Prayer: Second appeal filed under Section 100 of C.P.C., against the Judgment and Decree passed in A.S.No.9 of 2008 on the file of the II Additional Subordinate Judge, Madurai, dated 27.02.2012 reversing the Judgment and Decree passed in O.S.No.730 of 2000 on the file of the Additional District Munsif, Madurai, dated 25.04.2006.
For Appellants : Mr.A.Sankara Ramasubramanian for Mr.S.R.A.Ramachandran For R-1 & R-2 : Mr.C.M.Mari Chellaiah Prabhu, for M/s.Eddy and Embboss.
1/4
J U D G M E N T
The defendants in O.S.No.730 of 2000 on the file of the Additional District Munsif, Madurai Town, are the appellants in this second appeal.
2. The suit was filed for the relief of permanent injunction and mandatory injunction. The case of the plaintiffs is that the suit property was originally a vacant site and was purchased by Vellaichamy Nadar from one Madathi Ammal. Vellaichamy Nadar had four sons of whom Nagaiah Nadar was one. The said Nagaiah Nadar was the husband of the first plaintiff and father of the other two plaintiffs. Nagaiah Nadar purchased his brothers' share in the suit property. The allegation of the plaintiffs is that the defendants had committed encroachment on the same and to remove the same, the suit in question was filed. The defendant filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial Court framed necessary issues. The second plaintiff examined himself as P.W.1 and marked Ex.A.1 to Ex.A.7.
The first defendant Shanmugavalli examined herself as D.W.1 and one Mahalingam was examined as D.W.2. Ex.B.1 to Ex.B.3 were marked. After considering the evidence on record, the trial Court by judgment and decree dated 25.04.2006 dismissed the suit. Aggrieved by the same, the plaintiffs filed A.S.No.9 of 2008 before the II Additional Sub Court, Madurai. The first plaintiff had passed away in the meanwhile. Likewise the first defendant also had passed away and her legal heirs were brought on record. Before the first appellate Court, the plaintiffs filed I.A.No.507 of 2010 for appointment of Advocate Commissioner. The failure to seek appointment of Advocate Commissioner before the trial Court was one of the primary reasons which led to the dismissal of the suit.
To fill up the said lacuna, before the first appellate Court the plaintiffs took steps and the said I.A. was also allowed. The Advocate Commissioner's report and plan were marked as Ex.C.1 and Ex.C.2. Based on the same, the first appellate Court set aside the judgment and decree passed by the trial Court and decreed the suit as prayed for. The report and plan of the Advocate Commissioner Ex.C.1 and Ex.C.2 formed part of the decree. Aggrieved by the same, this second appeal came to be filed.
3. The legal heirs of the first defendant alone filed the second appeal. On 22.03.2022, it was admitted on the following substantial question of law:- " Whether the impugned judgment and decree warrant interference on the ground that the objections filed by the appellants were not even dealt with by the first appellate Court? "
2/4
4. Heard the learned counsel on either side.
5. When the records were called for, it was informed that the suit records had been destroyed as per rules. It is seen that the suit was dismissed on 25.04.2006. The appeal had been presented on 09.11.2006 but numbered as A.S.No.9 of 2008. It was disposed of on 27.02.2012. The second appeal was filed on 18.09.2012. I am therefore at a loss to understand as to how the suit records could have been destroyed so soon.
6. One of the specific grounds taken in the grounds of appeal is that the objections were filed in time to the Advocate Commissioner's report and that they have not been considered. I went through the impugned judgment of the first appellate Court and called upon the learned counsel appearing for the respondents to point out as to where the objections filed by the appellants had been dealt with. Attention could not be drawn to any such discussion. The learned counsel appearing for the appellants drew my attention to the decision reported in 2000 (3) CTC 78 (Veppanathar Alias Karuppannan V. Kaliappan). It was held therein, relying on the decision reported in AIR 1922 Mad.219 (Thottamma V. C.S.Subramaniayyan) that it is the duty of the Court, whenever a Commissioner's report is objected to, to hear objections in open Court.
In this case, it was certainly open to the first appellate Court to reject the objections and accept the Commissioner's report. But then, the objections must have been duly considered. As per Order 26, Rule 10(2) CPC, report of the Commissioner would constitute evidence in the suit and shall form part of the record. Therefore, the first appellate Court was obliged to consider the objections filed by the appellants. Since it has not been done, the impugned judgment and decree become vulnerable on that account. The impugned judgment and decree are set aside. The matter is remanded to the file of the first appellate Court. The first appellate Court shall take into account the objections filed by the appellants and thereafter give a disposal to the appeal on merits and in accordance with law.
The parties shall appear before the first appellate Court on 11.06.2022.
7. This second appeal is allowed on these terms. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (CO) // True Copy // / /2022 Sub Assistant Registrar(CS) PMU 3/4
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To:
1. The II Additional Subordinate Judge, Madurai.
2. The Additional District Munsif, Madurai.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai. (2 copies) +1 CC to M/s.C.M.MARI CHELLIAH PRABHU, Advocate ( SR-19401[F] dated 19/04/2022 ) +1 CC to M/s.S.R.A.RAMACHANDRAN, Advocate ( SR-19896[F] dated 20/04/2022 ) S.A.(MD)No.667 of 2012 19.04.2022 RK(19/05/2022) 4P 7C 4/4