BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.133 of 2006 and C.M.P.No.1057 of 2006 1.Cruise 2.Amalraj 3.Anthonypitchai 4.Murugesan 5.Flanji 6.Nicholas 7.Francis 8.Pootharasu 9.Siltal 10.Sabinal 11.Minor Grissol 12.Minor Hambilin 13.Minor Russon 14.Minor Eugene 15.Nageswaran ... Petitioners/Respondents/Plaintiffs Vs 1.Louis Ferdinando 2.Kulandaichamy Ferdinando 3.Michaeldoss Ferdinando 4.Siriyapushpam 5.Januaryas 6.Sahayam 7.Nepoleon 8.Ennraj 9.Regis 10.Maduvurani 11.Jessinthal 12.Santhosh 13.Enestin 14.Gunasekaran 15.Edison 16.Esther 17.Henry 18.Innocent 19.Liberty 20.Kissinger ... Respondents/Petitioners/Defendants Prayer Petition filed under Article 227 of the Constitution of India, as against the order dated 08.08.2005 in I.A.No.240 of 2004 in O.S.No.21 of 2001 on the file of the District Munsif cum Judicial Magistrate, Rameswaram, Ramanathapuram District. !For Petitioners ... Mr.M.V.Venkataseshan ^For Respondents ... No appearance :ORDER
This Civil Revision Petition is focussed as against the order dated
08.08.2005 in I.A.No.240 of 2004 in O.S.No.21 of 2001 on the file of the
District Munsif cum Judicial Magistrate, Rameswaram, Ramanathapuram District.
2. A re’sume’ of facts absolutely necessary and germane for the disposal
of this revision petition would run thus:
(i) The revision petitioners who are the plaintiffs in O.S.No.21 of 2001,
on the file of the District Munsif cum Judicial Magistrate, Rameswaram,
Ramanathapuram District, during the pendency of the suit filed I.A.No.81 of 2002
for appointment of a Commissioner to measure the suit property and note the
physical features and submit report with sketch. Thereupon, one Advocate
Thiru.Ravikumar was appointed to carry out the said mission. The Commissioner
visited the suit property and submitted his report dated 30.06.2004 with sketch.
Whereupon, both sides filed objections. However, I.A.No.81 of 2002 was closed
by the trial Court on the ground that both sides have not contested it further
and the trial commenced.
(ii) During trial, the defendants cross-examined the plaintiffs’
witnesses. While so, the defendants came forward with the new I.A.No.240 of
2004 for directing the same Advocate Commissioner to revisit the suit property
and measure the same and submit additional report with sketch; to that effect
the trial Court passed interim order thereunder. Whereupon, the Advocate
Commissioner visited the suit property once again, with the assistance of
Surveyor and other revenue officials and submitted his further report with
sketch on 11.07.2005.
(iii) Then, enquiry in the said I.A.No.240 of 2004 was taken up and both
sides contested it. The trial Court after narrating what had happened earlier
in paragraph No.6, clearly and categorically observed that without the
plaintiffs proving in what manner, the earlier Commissioner’s reports and
sketches are wrong, they simply prayed for once again ordering the same
Commissioner to revisit the suit property and measure it and submit his report
and accordingly, the trial Court dismissed the said I.A.No.240 of 2004.
3. Being aggrieved by the said order in I.A.No.240 of 2004, this Civil
Revision Petition has been filed by the plaintiffs on the following main
grounds among others:
The trial Court was not justified in ordering earlier the Commissioner to
once again visit the suit property and submit his additional report. It was not
open for the trial Court to appoint the same Commissioner for the second time
with certain missions as set out in the order dated 24.01.2005 of the trial
Court.
4. The point for consideration is as to whether there is any infirmity in
the order of the trial Court dated 08.08.2005?
5. Heard the learned Counsel for the petitioners. Despite printing the
name of the respondents, no one appeared.
6. The nitty-gritty, the gist and kernel of the case is that the trial
Court ordered appointment of the Commissioner at the request of the plaintiffs,
whereas without any valid reason at the instance of the defendants, once again
the same Advocate Commissioner was directed to visit the suit property and that
the same Commissioner simply reiterated his earlier report.
7. It is the grievance of the petitioners that second time, the same
Advocate Commissioner should not have been ordered to visit the suit property.
I am at a loss to understand as to how the plaintiffs could agitate the said
order dated 24.01.2005 after the Commissioner in pursuance to that order
revisited the suit property and submitted his report and the plaintiffs also
filed objection to the second report.
8. In such a case, the revision petitioners are not permitted to agitate
as against the order dated 24.01.2005, which directed the same Commissioner to
revisit the suit property. De hors that, even on merits, I am of the considered
opinion that earlier order dated 24.01.2005 is not vitiated for the reason that
during trial, the trial Court felt that it was in the interest of both parties,
the Commissioner should revisit the suit property and clarify certain positions.
9. Appointing a fresh Commissioner is different from directing the same
Commissioner to revisit the suit property and clarify certain points. As such,
this case cannot be equated to a case where a fresh Commissioner is appointed
without setting aside the report of the earlier Advocate Commissioner.
10. The trial Court in the impugned order dated 08.08.2005, at paragraph
No.6, clearly and categorically highlighted that there is no point in ordering
for the third time the same Commissioner to visit the suit property. He
highlighted that the plaintiffs are at liberty to adduce oral or documentary
evidence to prove his case and also to point out what are all mistakes
committed by the Commissioner.
11. As such, the trial Court has not finally decided anything warranting
interference of this Court’s revisional jurisdiction. Hence, I am of the
considered opinion that there is no infirmity in the order of the trial Court.
However, I make it clear as highlighted by the trial Court that the plaintiffs
are at liberty to adduce oral or documentary evidence in support of their case
and point out mistakes in the Commissioner’s reports as well as in the sketches.
12. The learned Counsel for the petitioners in an extempore manner would
submit that since this is an old matter, direction may be given to the trial
Court to dispose of the same within a stipulated period. Accordingly, the trial
Court is directed to dispose of the entire suit within a period of three months
from the date of receipt of a copy of this order.
13. In the result, this Civil Revision Petition is disposed of.
Consequently, connected Miscellaneous Petition is closed. No costs.
rsb
To
The District Munsif cum
Judicial Magistrate,
Rameswaram,
Ramanathapuram District.