Necessity of appointing an Advocate Commissioner for local investigation in property disputes.

ORDER :

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal orders dated 14.11.2019, made in I.A. No.3 of 2019 in O.S. No.1796 of 2019 on the file of VII Assistant City Civil Court, Judge, Chennai.

This Civil Revision Petition is filed against the fair and decreetal orders dated 14.11.2019, made in I.A. No.3 of 2019 in O.S.No.1796 of 2019 on the file of VII Assistant City Civil Court, Chennai.

2. The revision petitioners are the owners of flat No. F6, F5 & F4 respectively in Chandrasekar Foundation Manoj Flats, bearing Door No.40/25, Bharathi Street, Gandhi Nagar, Saligramam, Chennai-93. The respondent/defendant is the owner of G1 flat in the ground floor. The entire apartment complex consists of 6 apartments namely 3 in the ground floor and 3 in the first floor.

3. The petitioners had filed O.S.No.1796/2019 before the VII Assistant Judge, City Civil Court seeking for a relief of declaration that 240 sq. ft. of the covered common area on the western side of the building cannot be used as an exclusive car parking area of the defendant and also for a permanent injunction restraining the defendant or his men and agents from using the common area of 240 sq. ft. as his exclusive car parking area.

4. This being so, an application in I.A. No.3/19 under Order XXVI Rule 9 CPC was filed by the plaintiffs for appointment of an Advocate Commissioner to inspect the apartment premises and submit a report on the facts. This I.A. was resisted by the defendant stating that only 3 owners out of the remaining 5 flats had filed this O.S.1796/2019 and therefore the suit itself is liable to be rejected on the ground of non joinder of proper and necessary parties. Secondly, the defendant contended that he has purchased the flat G1 in the apartment complex along with a covered car parking vide sale deed dated 10.01.2017 from the vendors Muthukumar and Kutty Raj who are the sons of the original owner Ramakrishnan. It was also pointed out by him that he was a tenant in the same house before becoming the owner and was having the same privilege which his vendors were enjoying. Therefore, he prayed for dismissal of I.A. No.3/2019.

5. The learned VII Assistant Judge, City Civil Court, Chennai, dismissed I.A. No.3/2019 vide his orders dated 14.11.2019 on the ground that the dispute was not pertaining to the boundary or the extent of the area and furthermore with the photos of the actual site having been adduced on the side of the plaintiffs there was no necessity to appoint an Advocate Commissioner as prayed for by the plaintiffs. The present Civil Revision Petition is filed challenging this order.

6. Heard Mr. R. Thiagarajan, learned counsel appearing for the revision petitioners and Mr. B.L. Jayakandan, learned counsel appearing for the respondent.

7. The learned counsel appearing for the revision petitioners would contend that the trial court had erred in the judicial discretion of knowing the present status of the building and the alterations carried out by the respondent/defendant in order to accommodate an exclusive car parking for himself in the common area. It was also argued that though it is a parking area and the occupants of the building have been parking two wheelers in that area, the act of the respondent in demolishing and reconstructing the gate to accommodate his car and thereby restricting the free movement of the other occupants around the building would be more evident only if an Advocate Commissioner is appointed to note down the physical features of the flat's common area utilised for two wheeler parking, side set back and the recently erected grill gates which would help the trial court to get a better picture as to the hindrance caused to the other occupants. It was also pointed out by him that the respondent/defendant instead of admitting that he had illegally encroached upon the common area to carve out a space for his car parking has instead tried to argue on certain point wh