IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07-04-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.367 of 2010 Devaraj .. Petitioner Versus 1.Ramesh 2.Padma 3.Jayamma 4.Anandha 5.Chinnakkamma 6.Narayanamma 7.Chinnappa 8.Venkatesappa 9.Rajappa 10.Duraisamy 11.Krishnappa 12.Shanthamma .. Respondents PRAYER: Petition filed under Article 227 of the Constitution of India, seeking to set aside the order of the learned District Munsif of Hosur, dated 15.12.2009, in I.A.No.1025 of 2009, in O.S.No.91 of 1996 and allow the above civil revision petition. For Petitioner : Mr.V.Nicholas For Respondents: Mr.V.Manohar (R2) O R D E R
This Civil Revision Petition has been filed against the fair and decretal order, dated 15.12.2009, made in I.A.No.1025 of 2009, in O.S.No.91 of 1996, on the file of the District Munsif Court, Hosur.
2. The petitioner in the Civil Revision Petition had filed a suit in O.S.No.91 of 1996, on the file of the District Munsif Court, Hosur, praying for a decree in his favour, for specific performance, by directing the defendants 1 to 4 to execute and register the sale deed, after receiving the balance of sale consideration from the plaintiff.
3. The petitioner had also filed an interlocutory application, in I.A.No.1025 of 2009, praying for the appointment of a Court Commissioner to identify the suit property, to measure the same and to note down the physical features of the said property and to submit a report thereon, along with the plan.
4. The trial Court, by its order, dated 15.12.2009, had dismissed the interlocutory application stating that there was no necessity for the appointment of an advocate commissioner to inspect the suit schedule property and to find out if the fourth defendant had constructed certain buildings therein. When there is no dispute with regard to the identification and the nature of the property, and when the suit filed by the petitioner is only for the specific performance of the agreement for sale, dated 9.5.1992, there is no necessity for the appointment of an advocate commissioner, as prayed for by the petitioner, in I.A.No.1025 of 2009.
5. The learned counsel appearing on behalf of the petitioner had submitted that the order passed by the Court below is vitiated by errors apparent on the face of the record. The trial Court had failed to see that no prejudice would be caused to the defendants, if a commissioner was appointed to find out the physical features of the suit property. The trial Court had also failed to appreciate and to apply the correct principles of law, underlying Order XXVI Rule 9 of the Civil Procedure Code, 1908. The court below had failed to see that according to the evidence of the fourth defendant and one Gopalappa there are certain buildings which have been constructed in the suit property.
6. The learned counsel appearing on behalf of the respondents had submitted that the trial Court was right in dismissing the interlocutory application filed by the petitioner, in I.A.No.1025 of 2009. The petitioner, having filed the suit, in O.S.No.91 of 1996, on the file of the District Munsif Court, Hosur, for specific performance, based on the sale agreement, dated 9.5.1992, there is no necessity for the appointment of an advocate commissioner to filed a report about the construction of the buildings in the suit schedule property, as prayed for by the petitioner, in I.A.No.1025 of 2009. Therefore, the present civil revision petition is devoid of merits.
7. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner, in I.A.No.1025 of 2009. The trial Court was right in coming to the conclusion that there was no necessity for the appointment of an advocate commissioner, as prayed for by the petitioner, especially, when the suit had been filed by the petitioner, for specific performance, based on the agreement for sale, dated 9.5.1992. The petitioner has not been in a position to show that the appointment of an advocate commissioner by the trial Court, to identify the suit property, to measure the same and to note down its physical features, is necessary in the facts and circumstances of the case. As such, the Civil Revision Petition is devoid of merits. Hence, it stands dismissed. No costs.
csh
To
The District Munsif,
Hosur