BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/07/2007 CORAM The Hon'ble Mr. Justice S.NAGAMUTHU Civil Revision Petition PD (MD) No.522 of 2005 and C.M.P.(MD) No.4092 of 2005 1. Subbulakshmi 2. Gopalasamy 3. Kavitha 4. Jeyaraman 5. Umapathi .. Petitioners Vs. 1. Dhanalakshmi 2. Rajeswari .. Respondents Prayer Revision filed under Article 227 of the constitution of India against the fair and decreetal order of the learned Additional District Munsif, Srivilliputtur dated 11.02.2005 passed in I.A.No.1612 of 2004 in O.S.No.403 of 2000 dated 11.02.2005. !For Petitioners ... Mr.D.Srinivasa Raghavan ^For Respondents ... Mr.T.Sivakumar for Mr.J.Sureshkumar :ORDER
The petitioners who are the defendants 1 to 5 in O.S.No.403 of 2000, on
the file of the learned Additional District Munsif, Srivilliputtur, have come
forward with this revision challenging the order dated 11.02.2005 made in
I.A.No.1612 of 2004. The respondents are the plaintiffs.
2. Originally, the respondents have filed the above suit as against the
petitioners 1 to 4 herein alone for declaration and for consequential relief of
permanent injunction and also for mandatory injunction. During the pendency of
the suit, the respondents have filed I.A.No.1445 of 2000, before the lower Court
seeking for appointment of an Advocate Commissioner for the purpose of noting
down the physical features of the suit property and to submit a detailed report
regarding the same along with a rough sketch drawn by the Commissioner.
Accordingly, an exparte Commissioner was appointed and he visited the suit
property and submitted a report along with the sketch as directed by the Court.
However, the Commissioner did not measure the suit property with the assistance
of a Surveyor as it was not requested by both parties.
3. Objection regarding the Commissioner’s report was originally submitted
by the petitioners 1 to 4 herein, pointing out certain defects. Thereafter, the
petitioners 1 to 4 herein have filed I.A.No.559 of 2002, requesting the Court to
scrap the Commissioner’s report and to appoint a fresh Advocate Commissioner for
the very same purpose. It was opposed by the respondents/plaintiffs by filing an
appropriate counter. It is also brought to my notice that during enquiry in
I.A.No.559 of 2002, the Commissioner was also examined. Finally, the lower Court
by order dated 23.10.2002 has dismissed I.A.No.559 of 2002, thereby refusing to
scrap the Commissioner’s report and further, refusing to appoint a new
Commissioner. However, in paragraph No.7 of the said order, the lower Court has
scraped only the opinion given by the Commissioner in his report stating that
the wall is a common wall. In the opinion of the lower Court whether the wall is
a common wall or not is to be decided by the Court and therefore, the
Commissioner’s opinion is not relevant and therefore, the said opinion alone is
scrapped.
4. Subsequently, the fifth petitioner herein was impleaded as the fifth
defendant in the suit. The fifth petitioner, however, has not chosen to file a
separate written statement, claiming that he has got a separate case than that
of the case advanced by the petitioners 1 to 4/defendants 1 to 4. He simply
adopted the written statement filed by the petitioners 1 to 4 herein.
5. Thereafter, the petitioners herein have filed I.A.No.1612 of 2004,
requesting the Court for appointment of an another Advocate Commissioner who
shall be a senior member of the Bar for the purpose of inspecting the suit
property and to submit a report along with a sketch to be drawn by him. It was
opposed by the respondents. The learned Additional District Munsif, by order
dated 11.02.2005 has dismissed the same. Challenging the said order of
dismissal, this revision has been filed by the petitioners.
6. Heard the learned counsel for the petitioners as well as the learned
counsel for the respondents.
7. The learned counsel for the petitioners would submit that, since the
fifth petitioner was not a party to the suit when the earlier Commissioner was
appointed in I.A.No.1445 of 2000 and when I.A.No.559 of 2002 was filed and
heard, those orders would not bind him and therefore, he can maintain
I.A.No.1612 of 2004. The learned counsel would further submit that in so far as
the fifth petitioner is concerned, since he had no opportunity to oppose the
earlier Commissioner’s report, even without praying for scrapping the earlier
Commissioner’s report, he can maintain the present I.A.No.1612 of 2004 for
appointment of fresh Commissioner. He would further submit that for coming to
the right conclusion in the case, it is absolutely necessary that a fresh
Commissioner has to be appointed.
8. Per contra, the learned counsel for the respondents would submit that
the present I.A.No.1612 of 2004, is barred by constructive res judicata since in
view of the order made in I.A.No.559 of 2002, wherein the lower Court has
refused to scrap the Commissioner’s report and to appoint a new Advocate
Commissioner. The fact remains that the order made in I.A.No.559 of 2002, was
not at all challenged by the petitioners 1 to 4. The learned counsel would
therefore, submit that the fifth petitioner does not claim to have a separate
case since he sails along with the petitioners 1 to 4 herein in filing
I.A.No.1612 of 2004 and also in filing a common written statement and so, his
case alone cannot be now separated before this Court.
9. I have considered the rival contentions urged by the learned counsel
for both parties.
10. In this case, admittedly, the Commissioner’s report filed in
I.A.No.1445 of 2000, was challenged in I.A.No.559 of 2002. The lower Court,
having extensively gone into the rival contentions and after perusing the
evidence of Commissioner, has dismissed I.A.No.559 of 2002 thereby refusing to
scrap the Commissioner’s report and also to appoint another Commissioner for the
very same purpose. Having failed to challenge the correctness or otherwise of
the report filed by the Commissioner, the petitioners 1 to 4 cannot maintain the
present I.A.No.1612 of 2004, for the very same purpose, as they are barred by
res judicata. Therefore, there cannot be any difficulty for this Court to
dismiss the civil revision petition in so far as the petitioners 1 to 4 herein
are concerned.
11. So far as the fifth petitioner is concerned, the learned counsel for
the petitioners would submit that since he was not a party to the suit when
earlier I.A.No.1445 of 2000 and I.A.No.559 of 2002 were decided, his case should
be separately considered now. To afford an opportunity to highlight his claim in
this case, it is necessary to appoint Advocate Commissioner afresh. Though, this
argument appears to be attractive, in my considered view, it deserves only to be
rejected. If it is the case of the fifth petitioner that he has filed a separate
written statement contending that he has got a different case from the case of
the other petitioners namely, the petitioners 1 to 4/defendants 1 to4, then, his
case may be required to be considered separately. But admittedly, he does not
have a separate case. He has simply adopted the written statement of the other
defendants. Even in the present I.A.No.1612 of 2004, he has joined along with
the petitioners 1 to 4. Before this Court also all the five petitioners are the
revision petitioners. When that be so, the case of the fifth petitioner alone
cannot be separated and decided accordingly. Thus, he is also barred by means of
constructive res judicata though he was not a party in the earlier proceedings.
In view of the said position as against the fifth petitioner also, the order of
the lower Court does not warrant any interference by this Court.
12. In the result, the order passed by the learned Additional District
Munsif, Srivilliputtur dated 11.02.2005 made in I.A.No.1612 of 2004 in
O.S.No.403 of 2000, is confirmed. I do not find any merit in the revision. The
civil revision petition fails and accordingly the same is dismissed. No costs.
Consequently, connected C.M.P is closed.
To,
The Additional District Munsif,
Srivilliputtur