Kasthoori v. K. Balammal

O R D E R This Civil Revision Petition has been filed by the petitioner to set aside the impugned order dated 20.03.2023 passed in I.A.No.6 of 2022 in O.S.No.65 of 2022 on the file of the Subordinate Court, Manamadurai. Page No. 1 of 8

¶2The above suit in O.S.No.65 of 2022 was filed by the respondent for recovery of possession and for a mandatory injunction. During the pendency of the above suit, the respondent/plaintiff filed an application in I.A.No.3 of 2022 for appointment of an Advocate Commissioner to inspect the suit property and note down the physical features as per the petition plan and Sale Deed executed in favour of the respondent/plaintiff and also to note down the encroachments made by the petitioner/defendant. The Trial Court has allowed the said application and appointed the Advocate Commissioner.

¶3The Advocate Commissioner visited the suit property and filed his report and plan. The respondent/plaintiff filed her objections to the report submitted by the Advocate Commissioner stating that the Advocate Commissioner measured the property without removing the iron fence put up by the petitioner/defendant and if the Advocate Commissioner has measured the suit property after removing the iron fence, the suit property would have been measured properly. The further objection is that in the sketch submitted by the Advocate Commissioner, the physical features noted down by the Advocate Commissioner is inconsistent and since the Advocate Commissioner failed to measure the property with the help of surveyor, there are deficiencies/discrepancies in the sketch and report. Page No. 2 of 8

¶4Hence, the respondent/plaintiff filed I.A.No.6 of 2022 to scrap the Advocate Commissioner's Report and the sketch annexed therewith and also to appoint a fresh Advocate Commissioner to inspect the suit property and note down its physical features and also to note down the encroachments made by the petitioner/defendant and to take photographs of the suit property and to file his report and plan. By the impugned order dated 20.03.2023, the said application was allowed by the Trial Court stating that some discrepancies/deficiencies are found in the Report of the Advocate Commissioner which would not be sufficient to resolve the dispute between the parties. Aggrieved by this, the petitioner/defendant has approached this Court by way of this Civil Revision Petition.

¶5The learned counsel appearing for the petitioner/defendant would submit that it is a well settled principle that the second Advocate Commissioner can be appointed only in an extraordinary situation and same cannot be done in a routine manner in convenience of either of the parties. He would further submit that the Advocate Commissioner's Report is well within the scope of the order passed in the application in I.A.No.3 of 2022. The suit property was measured correctly and physical features were noted down as it is in the suit property. Page No. 3 of 8

¶6The learned counsel for the petitioner/defendant would further submit that the respondent/plaintiff and her counsel were present at the time of inspection made by the Advocate Commissioner and however failed to raise any objection at that point of time. He would further submit that no specific allegations made by the respondent/plaintiff in her application filed to scrap the Advocate Commissioner's Report. He would also submit that the Report filed by the Advocate Commissioner is clear and is well within the scope of the order passed in the application in I.A.No.3 of 2022 and therefore, the same cannot be said to be ambiguous.

¶7The learned counsel for the petitioner/defendant would submit that the Report of the Advocate Commissioner can be struck off only when the same exceeds the limit of the order and when it is unable to help the Court to decide the issue between the parties in the suit. He therefore would submit that the impugned order passed by the Trial Court in I.A.No.6 of 2022 scrapping the Report of the earlier Advocate Commissioner is liable to be set aside.

¶8On the other hand, the learned counsel appearing for the respondent/plaintiff would submit that the Advocate Commissioner failed to Page No. 4 of 8 measure the suit property in accordance to the Sale Deed executed in favour of the respondent/plaintiff. He had failed to note down the actual features and the encroachments made by the petitioner/defendant and the Report submitted by the Advocate Commissioner is not clear and therefore, it has become necessary for scrapping the earlier Report and appointment of a fresh Advocate Commissioner is necessary to decide the issue between the parties. Therefore, there is no infirmity in the impugned order passed by the Trial Court which calls for no interference.

¶9Heard on both side. Records perused.

¶10The Trial Court in the impugned order dated 20.03.2023 passed in I.A.No.6 of 2022 in O.S.No.65 of 2022 has observed as follows:- 8) ....... ,t;tof;fpy; tof;fwpQH MizaH jhf;fy; nra;Js;s mwpf;if kw;Wk; tiuglj;jpid fhZk; nghOJ jhth nrhj;jpid ePjpkd;wk; milahsk; fhZk; tifapy; njspthf ,y;yhky; cs;sJ. ePjpkd;w MizaH

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¶11The Trial Court has recorded its dissatisfaction over the proceedings of the Advocate Commissioner and has found some discrepancies/deficiencies in the Report of the earlier Advocate Commissioner. Therefore, the Trial Court has scrapped the Report filed by the earlier Advocate Commissioner since it is not in satisfaction to resolve the dispute.

¶12The Trial Court has appointed a fresh Advocate Commissioner after scrapping the Report filed by the first Advocate Commissioner. Since the suit was filed for recovery of possession and for mandatory injunction, stating that the petitioner/defendant has encroached into the property of the respondent/plaintiff, the Advocate Commissioner ought to have measured the property as per the Documents produced by the parties in order to come to a conclusion as to whether there is any encroachment made by the petitioner/defendant. But, the Advocate Commissioner has failed to measure the property as per the order passed in the earlier application in I.A.No.3 of Page No. 6 of 8 2022. To have a fair adjudication and to resolve the dispute between the parties, the Trial Court has correctly scrapped the earlier Advocate Commissioner's Report and passed the order for appointing a fresh Advocate Commissioner which is in accordance with law.

¶13The Trial Court after recording its dissatisfaction over the proceedings of the Advocate Commissioner scrapped the Report. Therefore, it is not necessary to interfere with the impugned order dated 20.03.2023 passed in I.A.No.6 of 2022 in O.S.No.65 of 2022 and the impugned order is confirmed.

¶14Accordingly, this Civil Revision Petition is dismissed. No cost. Consequently, connected Miscellaneous Petition is closed.

27.09.2023

Index : Yes/No Internet : Yes/No NCC : Yes/No jen To The Sub Judge, Manamadurai. Page No. 7 of 8

K.GOVINDARAJAN THILAKAVADI, J. jen and C.M.P.(MD) No.10289 of 2023

27.09.2023 Page No. 8 of 8

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on 04.09.2023 Delivered on 27.09.2023 CORAM THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI and C.M.P.(MD) No.10289 of 2023 Kasthoori ... Petitioner Vs. Dr.K.Balammal ... Respondent Prayer:- This Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order dated 20.03.2023 passed in I.A.No. 6 of 2022 in O.S.No.65 of 2022, by the Subordinate Court, Manamadurai, appointing second Advocate Commissioner. For Petitioner : Mr.S.Ramu For Respondent : Mr.J.Udhayakumar