CRP PD/912/2006 of VISALAKSHI AMMAL Vs PORMANNAN ALIAS RAJA on 22 December 2006

1. Visalakshi Ammal2.Ganesh3.Senthil Alias Senthil Murugan ... Petitioners(Defendants 1,3 & 4)Vs.

1. Pormannan alias Raja2.Uma... Respondents (Plaintiff and 2nd Defendant)

PRAYER : Civil Revision Petition filed under Article 227 of theConstitution of India against the fair and decreetal order dated23.01.2006 and made in I.A.No.2 of 2006 in O.S.No.132 of 2004, on the fileof District Judge (Training) and Additional Sub Judge II, Thiruvanamalai.

For Petitioners : Mr.V.BalasubramanianFor Respondents: Ms.P.T.Asha for Sarvabhauman AssociatesO R D E R

The defendants 1, 3 and 4 are the revision petitioners and therevision is filed under Article 227 of the Constitution of India. Theplaintiff filed the suit in O.S.No.132 of 2004 on the file of the DistrictJudge (Training) and Additional Sub-Judge II, Thiruvanamalai for specificperformance of a registered sale agreement dated 29.05.2003, stated tohave been entered between plaintiff and defendants and also directing thedefendants to receive the balance of Rs.12,984/- and execute the saledeed, apart from delivery of possession also alternatively for refund ofRs.4 lakhs with the interest of 12% per annum, stated to have beenreceived by the defendants under the registered sale agreement dated29.05.2003 etc.

2. The defendants have filed the written statement denying theexecution of the sale agreement with free consent and stating that takingadvantage of old age of the first plaintiff such signatures were obtained.The plaintiff has filed I.A.No.2 of 2006 in the said suit under order 26Rule 9 r/w 151 of Code of Civil Procedure for appointment of an Advocate

Commissioner to inspect and measure the suit property with the help of thesurveyor and submit a report with rough plan and survey plan andcertificate of surveyor with regard to the extent available. For filingthe said petition the plaintiff has given the reason that even though thesale agreement mentions the total extent of the property 2622 sq.ft., ason date the said extent is not available and only 1444 sq.ft. measuringEast-west 74 ft. and North-south 19 ft. is available. The plaintiff alsowould further state that in the suit he has restricted his prayer only inrespect of the available extent for the proportionate consideration, sincethe defendants have denied the execution, the Advocate Commissioner mustbe appointed to measure the suit property mainly with regard to the extentavailable.

3. On the other hand, the respondents in the I.A. who are therevision petitioners have filed the counter affidavit stating that whenthe execution itself is denied, filing of such application is prematureand appointment of such Advocate Commissioner at this stage will onlyprejudge the issue. The Trial Court has allowed the petition againstwhich the defendants have filed the present revision under Article 227 ofthe Constitution of India. A perusal of the order passed by the TrialCourt in allowing the application would show that the admitted case of theplaintiff is that when the agreement was entered, the said documentwherein the sale consideration was stated as Rs.7,15,000/- containedextent as 2622 sq.ft. and at present it is only 1444 sq.ft., which isavailable and therefore, the petitioners are entitled to pay proportionateconsideration and it was on that basis the suit is filed and it is only toprove the discrepancy between sale agreement and the extent available theAdvocate Commissioner is sought to be appointed and the court has allowedthe application on the ground that to prove the discrepancy inmeasurement, the appointment of Advocate Commissioner is necessary.

4. The learned counsel for the petitioners would submit that whenthe issue involved in the case is as to whether the agreement dated29.05.2003 has been actually entered with free consent or not, is a matterto be decided and therefore, when the execution of the agreement itself isquestion, the appointment of Advocate Commissioner to measure the propertywill not only prejudge the issue but it is only intended to threaten thedefendants to come for a term.

5. He would also further strenuously contend that when the plaintiffhimself has come forward that there is in existence only 1444 sq.ft. ofland and on that basis the suit has been filed, there is absolutely nonecessity for appointment of an Advocate Commissioner to measure the same,for, it is for the plaintiff to prove his case independently and forproving the plaintiff’s case the Advocate Commissioner cannot beappointed.

6. On the other hand, the learned counsel appearing for therespondents / plaintiffs would submit that by appointment of the AdvocateCommissioner no prejudice is going to be caused to the defendants and mereappointment of Advocate Commissioner will not amount to prejudging theissue.

7. I have heard the learned counsel for the petitioners as well asthe respondents and perused the order passed by the learned Trial Judge.

8. Order 26 Rule 9 Code of Civil Procedure, which enables the courtto issue commission to make local investigations in cases where anydispute has been raised and to elucidate the same, ascertaining the marketvalue of any property, or the amount of any mesne profits or damages orannual net profits. The said provision runs as follows:

"9. Commissions to make local investigations.- In any suit inwhich the Court deems a local investigation to be requisite orproper for the purpose of elucidating any matter in dispute, orof ascertaining the market-value of any property, or the amountof any mesne profits or damages or annual net profits, the Courtmay issue a commission to such person as it thinks fit directinghim to make such investigation and to report thereon to theCourt:

Provided that, where the State Government has made rules asto the persons to whom such commission shall be issued, the Courtshall be bound by such rules."

9. Considering the factual situation in this case, if at all thereis any necessity on the part of the court to issue Commission for localinvestigation for the purpose of measurement of the property that can onlyarise under caption "for the purpose of elucidating any matter in dispute"in the context of the specific averment, referred to the pleadings by theplaint. Even before that a reference to the suit notice issued on behalfof the plaintiff shows that when the plaintiff has made a measurement on10.11.2003 only 1444 sq.ft. was available and therefore, it is thespecific case of the plaintiff even in the suit notice that the plaintiffis liable to pay only proportionate amount, since the agreement containslarger extent.

10. On the other hand in the reply notice as given on behalf of thedefendants, who are the revision petitioners totally denying the executionas well as the receipt of any amount and it is the specific case that thedefendants that they were kidnapped and forced and one of the defendantswas physically handicapped and by force they were made to sign before theSub-Registrar Office on 29.05.2003 and in the reply notice also thedefendants have not raised any objection about the extent of the land.Likewise, the same was seen in the plaint filed by the plaintiff and inthe written statement filed by the defendants also. The point raised was

relating to the execution of the dispute regarding the sale agreement andnothing about the extent. Even in the counter affidavit filed in theInterlocutory Application on behalf of the defendants, who were therespondents in the I.A., the only dispute raised was about the existenceof the agreement itself and there is no dispute about the extent of theproperty shown. In such circumstances, I do not see any reason for theTrial Court to come to the conclusion as if the local investigation formeasurement of the property by Advocate Commissioner is necessary to provethe discrepancy.

11. In the context of the stand taken by the defendants as if theagreement was entered by force by kidnapping, etc., by means of kanthuvatipersons, there is certainly a substance in the arguments advanced by thelearned counsel for the petitioners that the purpose of appointment ofAdvocate Commissioner at this stage to go to the spot and measure is onlyto indirectly threaten the defendants to come to any terms with theplaintiff. The reason given by the learned Trial Judge that appointmentof Advocate Commissioner will not prejudge the issue is in my consideredview not a correct approach.

12. In any event in a suit for specific performance, it is for theplaintiff to prove as to whether the agreement which is the basis for thesuit is enforceable at law, apart from the fact as to whether theplaintiff was willing to perform his part of obligation and the defendantswere not willing to do the same, in spite of the plaintiff willingness andso many other factors are to be proved.

13. Therefore, it is clear that appointment of an AdvocateCommissioner at this stage is only premature and un-called for. In viewof the same the order passed by the learned Trial Judge in I.A.No.2 of2006 in O.S.No.132 of 2004 dated 23.01.2006 is set aside with a directionto the Trial Court to proceed with the trial and dispose the suitexpeditiously. The Civil Revision Petition stands allowed. No Costs.Consequently, connected C.M.P.is closed.

bnj

To

1. The District Judge (Training)

Additional Subordinate Judge II,Tiruvannamalai.

2. The Record Keeper,

V.R.Section, High Court, Madras.

1 cc To Mr.V.Balasubramanian, Advocate, SR.64782.

1 cc To M/.Sarvabhuaman Associates, Advocate, SR.64930.

C.R.P.No.912 of 2006

JRG(CO)RVL 05.01.2007