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R. Johnson Vs. S. Yesudhas and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberCRP (PD) (MD) No. 1826 of 2016
Judge
AppellantR. Johnson
RespondentS. Yesudhas and Others
Excerpt:
.....district munsif, kuzhithurai, kanyakumari district. 2. the first respondent herein/plaintiff has filed a suit in o.s.no.373 of 2007 before the second additional district munsif, kuzhithurai, kanyakumari district, for the relief of declaration in respect of the ''a'' schedule of the suit property and for recovery of possession of ''b'' schedule of suit property. the extent of area of suit 'b' and 'c' schedule properties were stated in the plaint as 0.750 cents and 0.517 cents respectively. therefore, an advocate commissioner was appointed in the suit, who had filed a report stating that the extent of suit 'b' and 'c' schedule properties would be 0.680 cents and 0.587 cents respectively. therefore, there is error in the plaint regarding the extent of 'b' and 'c' schedule properties and.....
Judgment:

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order passed in I.A.No.37 of 2016 in O.S.No.373 of 2007, dated 27.7.2016, on the file of the II Additional District Munsif, Kuzhithurai, Kanyakumari District.)

1. This revision has been directed against the fair and decretal order passed in I.A.No.37 of 2007, dated 27.07.2016, on the file of the II Additional District Munsif, Kuzhithurai, Kanyakumari District.

2. The first respondent herein/plaintiff has filed a suit in O.S.No.373 of 2007 before the Second Additional District Munsif, Kuzhithurai, Kanyakumari District, for the relief of declaration in respect of the ''A'' schedule of the suit property and for recovery of possession of ''B'' schedule of suit property. The extent of area of suit 'B' and 'C' schedule properties were stated in the plaint as 0.750 cents and 0.517 cents respectively. Therefore, an Advocate Commissioner was appointed in the suit, who had filed a report stating that the extent of suit 'B' and 'C' schedule properties would be 0.680 cents and 0.587 cents respectively. Therefore, there is error in the plaint regarding the extent of 'B' and 'C' schedule properties and the same has to be corrected by way of amendment petition.

3. According to the respondents, the report of the Commissioner is incomplete and hence they have filed an application to scrap the report and plan of the Advocate Commissioner. Further, the application filed by the Petitioner/Plaintiff is a belated one. Therefore the said application has to be dismissed.

4. However, the trial Court considering the objections of the revision Petitioner/first defendant, allowed the said petition on condition to pay a sum of Rs.1000/- to the respondents 1 to 3 towards cost on or before 3.8.2016.

5. The respondents herein filed a counter statement before the trial Court and the contention of the respondents is that the petition is not maintainable and belated one and liable to be dismissed.

6. Heard the learned counsel for the Petitioner and perused the material papers on record.

7. It is an admitted fact that the first respondent herein/plaintiff has filed a suit in O.S.No.373 of 2007 before the Second Additional District Munsif, Kuzhithurai, Kanyakumari District for the relief of declaration in respect of the ''A'' schedule of the suit property and for recovery of possession of ''B'' schedule of suit property. The trial Court has commenced the trial and at this stage, an Advocate Commissioner was appointed and he has also filed his report. The objection to the said report has also been filed by both parties. According to the respondent herein, there is alteration in the extent on the suit B and C schedule properties. The said variation has came only after the Advocate Commissioner's report was filed before the trial Court. The above said reasons has been stated in the affidavit filed by the first respondent herein/plaintiff to amend the extent of 'B' and 'C' schedule properties.

8. On a perusal of the impugned order passed by the trial Court, it is seen that mere altering the extent of 'B' and 'C' schedule of suit properties, the nature and character of the suit is not going to be changed. Further the parties have already filed their objections to the Advocate Commissioner's report and the same has to be considered at the time of trial. Liberty is granted to the Petitioner/Ist defendant to file additional Written statement if any, to the amendment application, explaining the extent of the suit property. In view of the above, this Court is not inclined to interfere with the impugned order passed by the trial Court and accordingly, the revision petition fails.

9. With the above observation,the Civil Revision Petition is dismissed. No costs.


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