S.S.Chinnachamypillai, (Died) v. N.Thirupathi,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON:
14.07.2021 PRONOUNCED ON: 18 .11.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN MP(MD)No.2 of 2014 (Through Video Conferencing) S.S.Chinnachamypillai (died) C.Rathishkumar ..Petitioner/Petitioner/ Appellant Vs N.Thirupathi ..Respondent/Respondent/ Respondent Prayer:- This Civil Revision Petition has been filed under Article 227 of Constitution of India against the fair and decreetal order, dated 28.11.2013, passed in IA.No.137 of 2013 in AS.No. 53 of 2013, by the Principal Sub Court, Dindigul. For Petitioner :
Mr.H.Lakshmishankar for Mr.T.V.Sivakumar For Respondent :
Mr.J.Barathan
ORDER
1.This Civil Revision Petition has been filed, against the fair and decreetal order, dated 28.11.2013, passed in IA.No.137 of 2013 in AS.No. 53 of 2013, by the Principal Sub Court, Dindigul. 2.The facts of the case, in a nutshell, are that the Respondent is the Plaintiff and the 1st Petitioner was the sole Defendant in OS.No.217 of 2004 and the 2nd Petitioner was his legal heir. The said suit, filed for declaration of title and permanent injunction, was decreed. In the appeal, the sole Defendant had filed the above application for appointment of Commissioner to measure the property along with the surveyor. Since the said application was dismissed, by the impugned order, this Civil Revision Petition has been filed.
3.The learned counsel for the Petitioners has submitted that since the report and plan of the Advocate Commissioner is incomplete, it ought to have reissued the Commission and as such, it has become necessary in the appellate stage to clarify the report of the Commissioner by a further report and hence, this Civil Revision Petition is to be allowed. In support of his submissions, he would rely on the decisions reported in 2003 1 CTC 321 (Special Tahsildar and land Acquisition Officer, 1/3
Nagercoil Vs. Daisy Morayin and others) and 2003 4 LW 77 (P.Chockalingam Vs. M.Pichai).
4.The learned counsel for the Respondent has submitted that when the earlier report and plan of the Advocate Commissioner were not objected to, appointment of an Advocate Commissioner for the second time for the very same purpose, is not necessary and that only to delay the appeal proceedings, the application had been filed and hence, this Civil Revision Petition is liable to be dismissed.
5.This court heard the learned counsel on either side and considered their submissions and also carefully perused the materials placed on record.
6.It is seen from the records that an Advocate Commissioner was appointed before the Trial Court and his report and plan were filed and the Defendant did not file any objection to the report and plan of the Advocate Commissioner, before Trial Court. When the first appeal was posted for pronouncing judgement by the lower appellate court, the present application came to be filed for the second time to reopen and measure the suit property once again. Appointment of 2nd Commission, without setting aside the earlier report and plan of the Advocate Commissioner, cannot be permitted. A party cannot collect evidence through Advocate Commissioner.
7.The suit is of the year 2004 and it was decreed in 2013 and the appeal was filed in 2013. The judgement and decree of the Trial Court is against the Petitioners. This Civil Revision Petition was filed in the year 2014, wherein at the time of admission interim stay was granted on 29.04.2014 and thereafter, this Civil Revision Petition has been adjourned several times and is kept pending without any further order.
8.In view of the above, this Court is of the view that the application and this Civil Revision Petition have been filed only to fill up the lacuna and drag on the appeal proceedings and as such, the impugned order, refusing to reappoint an Advocate Commissioner, need not be interfered with. 9.In fine, this Civil Revision Petition is dismissed.. No costs. Consequently, the connected MP is closed.
Sd/- Assistant Registrar (CS-I) // True Copy // / /2021 Sub Assistant Registrar(CS) Srcm 2/3
To The Principal Sub Court, Dindigul.
Copy to The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai(2 copies). +1 CC to M/s.T.V. SIVAKUMAR, Advocate ( SR-35075[F] dated 18/11/2021 ) +1 CC to M/s.T.R.JEYAPALAM, Advocate ( SR-35112[F] dated 19/11/2021 ) 18.11.2021 RK(30/11/2021) 3P 6C 3/3