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SUBBULAKSHMI versus DHANALAKSHMI

High Court of Madras

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Subbulakshmi v. Dhanalakshmi - Civil Revision Petition PD (MD) No.522 of 2005 [2007] RD-TN 2325 (13 July 2007)

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




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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