BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:19/06/2009
CORAM
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
C.R.P.PD(MD)NO.1722 of 2007
and
M.P.(MD)No.1 of 2007
1.Arulmighu Narayanasamy Temple
Through its Trustees
i)Chellachamy
ii)Velusamy
iii)Subramanian
2.Ramachandran
3.Mookan Nadar
(Petitioners 2 & 3 for themselves
and as representatives of the users
of 3rd schedule street).
... Petitioners
Vs.
1.Arulmighu Thangamman Kovil
Through its Trustees
i)Duraipandi
ii)Vaithialingam
iii)Arunachalam
iv)Selvaganesh
v)Thangaraj
vi)Ponnusamy Nadar
vii)Muppuli Rajan
2.Sivanthipuram Panchayat
through its Executive Authority,
Sivanthipuram,
Ambasamudram Taluk,
Tirunelveli District. ...Respondents
PRAYER
Civil Revision Petition filed under Article 227 of Constitution of
India, against the order and decretal order made in I.A.No.221 of 2006 in
A.S.No.37 of 2006 on the Court of the Sub Court, Ambasamudaram, dated
21.02.2007.
!For Petitioners ... Mr.A.Arumugam
^For Respondent No.1... Mr.M.Vallinayagam
:ORDER
This Civil Revision Petition has been filed by the petitioner against the
order made in I.A.No.221 of 2006 in A.S.No.37 of 2006 on the file of the Sub
Court, Ambasamudaram, dated 21.02.2007. The petitioner herein, is the plaintiff
in the suit. He has filed the suit for declaration and permanent injunction in
O.S.No.505 of 2000 dated 26.11.2000, on the file of the District Munsif Court,
Ambasamudaram.
2. The said suit has been dismissed and being aggrieved of the same, an
appeal has been preferred in A.S.No.37 of 2006, on the file of the Sub Court,
Ambasamudram.
3. Pending the appeal, the petitioner has filed an application on
21.02.2007, seeking appointment of Commissioner on the ground that earlier
appointment of Commissioner made was not proper. The Court below has dismissed
the said application and being aggrieved of the same, he has preferred the
present Revision Petition.
4. The learned counsel for the petitioner submitted that the petitioner
has filed the application in view of the fact, that the suit filed by him has
been dismissed. Therefore, the application for appointment of Commissioner is
necessary in order to find out as to whether there is any other alternative
pathway as contented by the defendants or not. According to the learned counsel
for the appellant an appeal is a continuation of the suit and therefore, the
appellate Court could exercise the same. Power of the trial Court as reported in
1993 (2) Law weekly 59 (Devagiri Plantations Ltd., Nagercoil by its Managing
Director D.Subramaniam and another Vs. State of Tamil Nadu rep. by the District
Collector of Kanyakumari District.)
5. The learned counsel for the respondents submitted that even pending the
suit, not only the Commissioner was appointed but warrant has been re-issued to
him and only the subsequent report was marked before the Court. According to
the learned counsel for the respondents, the petitioners cannot collect any
evidence as against the respondents.
6. The learned counsel for the petitioners submitted that having warranted
a decree against them, the petitioners cannot file their application except to
contend that the judgment and decree of the Court below is wrong.
7. An application for appointment of Commissioner cannot be made to
collect the evidence and such application cannot be maintainable and in earlier
occasion, a Commissioner is appointed and the warrant has been re-issued to him.
As contented by the learned counsel for the respondents the petitioners cannot
seek appointment of Commissioner to prove the case of the defendant that there
was no existence of the pathway as contented by the defendant. It is for the
plaintiffs/petitioners to prove their case. Under those circumstances, this
Court finds that there is no illegality or irregularity in the order passed by
the Court below. Accordingly, the Revision Petition deserves to be dismissed.
Accordingly, the Civil Revision Petition is dismissed. Consequently,
connected Miscellaneous Petition is also dismissed. There shall be no orders as
to costs.
DP
To
The Subordinate Judge,
Ambasamudaram.