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2010 Supreme(Mad) 2070
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P.P.S. JANARTHANA RAJA
Karuppayee
Versus
Palanisamy
C.R.P.(PD)No.3915 of 2009 & M.P.No.1 of 2009
Decided On :05-01-2010
For Petitioner:R. Marudhachalamurthy, Advocate.
For Respondent:R1 to R3, S. Dhanasekaran, Advocate.
The main legal point established in the judgment is the application of Article 227 of the Constitution of India and the principles enumerated in various judgments in the context of appointing an Advocate Commissioner and the scope of powers under Article 227.
Headnote:
Civil Revision Petition - Water Rights Dispute - [Article 227 of the Constitution of India, 2009(13) Scale 487, Bathutmal Raichand Oswal v. Laxmibai R. Tarta, State through Special Cell, New Delhi V. Navjot Sandhu alias Afshan Guru and others, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, State of Maharashtra V. Milind & others, Rajneet Singh V. Ravi Prakash, Shamshad Ahmad & Ors. v. Tilak Raj Bajaj] - The court discussed the appointment of an Advocate Commissioner to re-visit the suit property and file a report, and the application of Article 227 of the Constitution of India in the context of the scope of powers under Article 227 and the principles enumerated in various judgments.
Fact of the Case:
The respondents filed a suit seeking declaration of their entitlement to take water through an underground pipeline and permanent injunction restraining the defendants from interfering with their right. The trial Court allowed the application to appoint an Advocate Commissioner to re-visit the suit property and file a report.
Finding of the Court:
The trial Court's decision to appoint an Advocate Commissioner was based on the lack of details in the earlier reports and the need for a comprehensive report to decide the matter. The court also discussed the scope of powers under Article 227 of the Constitution of India and the principles enumerated in various judgments.
Issues: The main issue was the appointment of an Advocate Commissioner to re-visit the suit property and file a report, and the application of Article 227 of the Constitution of India.
Ratio Decidendi: The court held that the appointment of an Advocate Commissioner was necessary due to the lack of details in the earlier reports, and confirmed the trial Court's decision based on the scope of powers under Article 227 and the principles enumerated in various judgments.
Final Decision: The Civil Revision Petition was dismissed, and the order passed by the trial Court was confirmed.
This Civil Revision Petition is filed against the fair and decretal order dated 11.11.2009 made in I.A.No.354 of 2009 in O.S.No.12 of 2007 on the file of District Munsif cum Judicial Magistrate, Kodumudi.
2. Respondents 1 to 3 are the plaintiffs. The petitioner is the first defendant. Respondents 4 to 13 are the defendants 2 to 11 in the suit. The respondents 1 to 3/plaintiffs have filed a suit in O.S.No.12 of 2007 before the District Munsif-cum-Judicial Magistrate, Kodumudi, seeking following prayer:
a) Declaring that the plaintiffs are entitled to take water through the suit underground pipeline laid in R.S.Nos.585/2, 3, 6, 10, 11 to 16 and 18 of Kodumudi village washed in green colour and marked as CDEFG in the plaint plan;
b) granting permanent injunction restraining defendants 1 to 7 their men and agents from any manner causing damage or interfering with the right of the plaintiffs to take water through the suit pipeline laid in R.S.Nos.585/2, 3, 6, 10, 11 to 16 and 18 of Kodumudi village maked in green colour and marked as CDEFG in the plaint plan; and
c) directing the defendants 1 to 7 to pay the plaintiffs the cost of the suit.
The petitioner/first defendant has filed written statement denying all the allegations stated in the plaint and contended that the suit is devoid of merits and the same has to be dismissed. Later, respondents 1 to 3/plaintiffs filed I.A.No.354 of 2009 in O.S.No.12 of 2007 seeking to appoint an Advocate Commissioner to re-visit the suit property and file a report. The petitioner/first defendant and respondents 4 to 9/defendants 2 to 7 had filed counter opposing the same. After considering the arguments advanced on either side, the trial Court allowed the application. Aggrieved by that order, the petitioner/first defendant has filed the present Civil Revision petition.
3. The learned counsel appearing for the petitioner/first defendant submitted that the trial Court erred in allowing the application filed by respondents 1 to 3 on the date of judgment without reopening the suit or scrapping the reports of the Commissioner, which were filed earlier. He further submitted that when the trial Court posted the matter on 29.9.2009 for judgment, the respondents 1 to 3/plaintiffs filed the above said I.A., which clearly shows their intention to delay the trial proceedings. He also contended that the same Commissioner has categorically given details in his earlier reports and without scrapping the said reports, the trial court has wrongly allowed the present application. He also relied on the following judgments to support of his contention:
(1) MOHAMMED THAIYUB VS. ABDUL RASHEED AND FOUR OTHERS (2008) 2 MLJ 838;
(2) B.S.NAZIR HASSAN KHAN VS. ASWATHANARAVANA RAO AND OTHERS( AIR 2004 KARNATAKA 92);
(3) K.M.A.WAHAB AND FIVE OTHERS VS. ESWARAN AND ANOTHER (2008 (3) CTC 597);
(4) D.KUTTIYAPPAN AND OTHERS VS. MEENAKSHIAMMAL POLYTECHNIC UNIT OF M/S MEENAKSHIAMMAL TRUST, REP. BY ITS MANAGING TRUSTEE A.H.RADHAKRISHNAN (2005 (4) CTC 676);
(5) CHANDRASEKARAN AND 6 OTHERS VS. V.DOSS NAIDU (2006 (2) Law Weekly 159); and
(6)SATISH AGARWAL AND OTHERS VS. TIRATH SINGH (1996 AIHC 1761).
4. The learned counsel appearing for the respondents submitted that there are no details in the earlier Commissioners reports. There are lack of details and hence, the trial Court is correct in appointing the Commissioner for the purpose of finding out the exact nature of the underground pipeline passing through the land. Hence, the order passed by the trial Court is in accordance with law and the same has to be confirmed. He also undertakes to co-operate for disposal of the suit within the time limit fixed by the Court.
5. Heard the learned counsel on either side and perused the materials available on record. The first respondent is the first plaintiff, who is the father of respondents 2 and 3/plaintiffs 2 and 3. The land in R.S.Nos.579/7, 11, 21, 585/11, 17, 19 and 586/5, 7, 10 and 11 of Kodumudi Village are the ancestra
