Chandrasekaran v. Balamurali

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.11.2016

CORAM

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR C.R.P.(PD)No.985 of 2011 and M.P.(MD)No.3 of 2011 Chandrasekaran .. Petitioner/1st Respondent/ 1st Defendant Vs.

1. Balamurali

2. Kathiravan

3. Ramachandran

4. Vellaithayammal

5. Rukkumani .. Respondents 2 to 5/ Respondents 2 to 5/ Defendants 2 to 5 PRAYER: Petition filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 29.04.2011 made in I.A.No.90 of 2011 in O.S.No.72 of 2011 on the file of the District Munsif cum Judicial Magistrate Court, Kodaikanal and to allow the said application with cost.

For Petitioner : Mr.A.Arumugam for Ajmal Associates For R-1 : M/s.S.Vijayashanthi For R-2 to R-5 : No appearance.

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O R D E R

Challenging the order passed by the learned District Munsif cum Judicial Magistrate, Kodaikanal, in I.A.No.90 of 2011 in O.S. No.72 of 2011, dated 29.04.2011, this Civil Revision petition has been filed.

2. According to the petitioner, the first respondent herein filed a suit in O.S.No.72 of 2011 before the District cum Judicial Magistrate Court, Kodaikanal, for declaration and recovery of possession. In the aforesaid suit, the first respondent herein filed the present application in I.A.No.90 of 2011 to appoint an Advocate Commissioner to visit the suit property to note the physical features, to find out the condition and texture of the soil, whether the land was fit for cultivation, whether the land has already been cultivated. In the present application, the Court below mechanically ordered the appointment of Advocate Commissioner to visit the suit property and note down the physical features of the suit property and to file a report. There was no reason assigned by the Court for the appointment of Advocate Commissioner. Challenging the order passed in the present application, the petitioner has filed the present Civil Revision petition before this Court.

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3. According to the petitioner, the said order passed by the Court below was without considering the provisions as contemplated under the Civil Procedure Code. Therefore, the said order passed by the Court below in the present application has liable to be set aside.

4. Per contra the learned counsel for the first respondent would submit that pursuant to the order passed by the Court below, the Advocate Commissioner inspected the suit property and submitted his report before the Court below. Thereafter, as per the dismissal of stay petition, vacate stay petition filed by the first respondent was dismissed by this Court. Therefore, this Revision petition is liable to be set aside.

5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent and perused the records.

6. On perusal of records, as per the order passed by the Court below in the present application, the Advocate Commissioner visited the suit property and submitted the report and pursuant to the submission of the report, the stay application was dismissed by this Court.

7. Therefore, in view of the said facts, nothing survives in the present Civil Revision petition and I am not inclined to interfere with this petition. Hence, the Civil Revision petition is dismissed. However, the learned counsel for the petitioner would seek liberty to file an application to scrap the report filed by the Advocate Commissioner. It is open to the Revision petitioner to file an appropriate application before the Court below. There is no order as to costs. Consequently, connected Miscellaneous petition is closed.

Sd/ Assistant Registrar(CS-II) /True Copy/ Sub Assistant Registrar.

To The District Munsif cum Judicial Magistrate, Kodaikanal.

+1CC to M/S.Ajmal Associates,, SR.No. 69798 C.R.P.(PD)No.985 of 2011 and M.P.(MD)No.3 of 2011 16.11.2016 pmu AM/JM/06.03.2017/2P/3C https://hcservices.ecourts.gov.in/hcservices/