IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/09/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CIVIL REVISION PETITION No.1985 OF 1998
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1.S.Nambinarayanan
2.S.Sankaranarayanan Reddiar ... Petitioners
-Vs-
1.S.Raman Reddiar
2.P.Jayapal ... Respondents
Civil Revision Petition filed under Section 115 of the Code of Civil
Procedure for the reliefs as stated therein.
For petitioners : Mr.N.Subbarayalu
For respondents : Mr.K.Srinivasan
:O R D E R
This Civil Revision Petition is filed against the order dated
26.8.1997 made in I.A.No.1091 of 1996 in O.S.No.771 of 1993 by the Court of
Principal District Munsif, Tirunelveli thereby dismissing the said petition
filed by the petitioners, who are the defendants to the suit to scrap the
Commissioner’s report already filed by the AdvocateCommissioner and appoint a
new Commission to measure the property with the help of a qualified Surveyor
and the District Surveyor and to submit a report.
2. Today, when the above matter was taken up for
consideration in the presence of the learned counsel for both, it comes to be
known that the suit is one filed by the respondents herein praying for
permanent injunction restraining the defendants from putting up any further
construction in the Schedule II of the suit properties.
3. While so, the defendants have filed an application earlier
for the appointment of a Commission to inspect the suit locality, to measure
the same with the help of a qualified Surveyor and to submit a report and the
said petition having been allowed, the learned Commissioner appointed by the
Court had paid visit to the spot thrice with the help of both the parties and
has measured the same and since water was stagnated in a portion of the
property, with very many oddities, the Commissioner has complied with the
requirements of the warrant and has submitted his report and it is this report
filed by the Commissioner, the petitioners/defendants have come forward to
pray to scrap and to appoint a new Commission replacing the present
Commissioner.
4. The lower Court having framed its own point for
consideration and having traced the pleadings of the petition and the counter
and having its own discussions on the point framed, has ultimately arrived at
the conclusion to dismiss the I.A. seeking a fresh Commission and report.
5. Today, the learned counsel appearing on behalf of the
petitioners would point out certain irregularities which are said to have
occurred in the earlier commission report stating that in spite of there being
water stagnated on the Western side, the measurement was undertaken and it was
not measured properly; that in spite of having measured the property on three
occasions, they have not been properly given in the sketch to the facts on
ground; that they issued two memos. to the Commissioner seeking clarification
regarding the measurements and the difference in measurement, but still, they
have not been pointed out in his report; that the Inspector of Surveys did not
act in a justifiable manner etc. But, these allegations would be vehemently
denied by the other side in their counter stating that not only the Commission
was appointed by the Court in I.A.No.1196 of 1993 but also a very senior
survey officer of the rank of Assistant Director of Surveys was appointed with
the consent of both the parties and the Commissioner inspected the spot on
three occasions on 4.12.1993, 11.12.1993 and 22.1.1994 and both the parties
freely pointed out what they wanted the Commissioner to do and with very great
difficulties, the Commissioner was able to see the locality in spite of many
oddities and noted down the physical features and measured the property as
warranted by the Court; that the petitioners intending to cause obstruction to
the report filed by the Commissioner and to drag on the proceeding with mala
fide intentions have come forward to file the above application to scrap the
Commissioner’s report and to appoint a new Commission and would pray to
dismiss the application.
6. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for the
petitioners and the respondents as well, the trial Court having gone into the
facts and assessing the situation and having framed its own point for
consideration and appreciating the materials placed on record particularly the
earlier report of the Commissioner and the manner in which the report has been
prepared by the Commissioner as per the report dated 9.3.1994 and would cite a
judgment of a single Judge of this Court reported in AIR 1995 Madras 274
(GOPALAKRISHNAN V. P. SHANMUGAM) wherein it is held that unless the Court
arrived at the conclusion that the earlier report was erroneous and set aside
the same, the question of appointment of a new Commission or filing of a new
report did not arise and would ultimately dismiss the application.
7. This Court is not able to find any tangible reason
existing in favour of the petitioners seeking the appointment of a new
Commission scrapping the report already submitted by the Commissioner
appointed by the Court. Moreover, appointment of a Commission, though often
times are initiated by one of the parties or by both, still, it is only for
the purpose of the Court to find out the truth more clearly and in full and
based on the report filed, the Court should arrive at the conclusion in
consideration of the other available materials placed on record and in the
said process, if the Court is satisfied with the Commissioner’s report, just
for the simple reason that they are not satisfied with the Commissioner’s
report, the petitioners could not seek for a fresh commission or scrapping the
earlier report, which is undesirable and cannot be sustained.
8. This Court is not able to find any legal infirmity or
inconsistency or any error apparent on the face of the order passed by the
lower Court so as to cause its interference into the well considered and
merited order passed by the lower Court and the only conclusion that this
Court, in these circumstances, could arrive at, is to dismiss the above civil
revision petition since the same is not on merit and hence the following
order:
In result,
(i) the above civil revision petition does not merit acceptance and the same
is dismissed as such.
(ii)The order dated 26.8.1997 made in I.A.No.1091 of 1996 in O.S.No.7 71 of
1993 by the Court of Principal District Munsif, Tirunelveli is hereby
confirmed.
(iii)Since it is a long pending matter, the trial Court is further directed to
deal with the suit in O.S.No.771 of 1993 taking up the same out of turn and
bringing on the priority list and conducting the trial as expeditiously as
possible so as to deliver the judgment on merits and in accordance with law
within six months from the date of receipt of a copy of this order.
However, in the circumstances of the case, there shall be no
order as to costs.
Index: Yes
Internet: Yes
Rao
To
The Principal District Munsif,
Tirunelveli.