High Court · 2025

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.07.2025CORAMTHE HONOURABLE MR JUSTICE P.B. BALAJICRP.No.1990 of 2025and CMP. Nos.11444 of 20251.Mr.Roshan Dominic Jude Rayen2.Mrs.Lourdes Joavani ... PetitionersVs.1.Mrs.Bala Rajeswari2.Dr.V.Alexander3.Dr.S.Vincent4.A.Rajkumar5.Ravindran Jacob6.The Commissioner, Greater Chennai Corporation, Rippon Building, Chennai – 600 003.7.The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maaligai, Egmore, Chennai – 600 008. ... RespondentsPRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order in I.A. No.2 of 2023 in O.S. No.6721 of 2023 passed by the learned VII Assistant Judge, City Civil Court, Chennai dated 04.04.2025. 1/12 https://www.mhc.tn.gov.in/judis For Petitioners: Mr.S.Abdul Mussawwir KhanFor Respondents : Mr.T.K.S.Gandhi for R1 toR5 Mr.DBR. Prabhu, Standing Counsel for Corporation for R6 Mr.R.Thamarais Selvan, Standing Counsel for CMDA for R7 ORDERThe petitioners are defendants in a suit for permanent injunction as well as mandatory injunction, complaining of unauthorised and illegal construction and encroachments alleged to have been made by the defendants.2. Pending the suit, the plaintiffs have taken out an I.A. No.2 of 2023 for appointment of Advocate Commissioner. The said Application has been allowed by the Trial Court and in and by order allowing I.A. No.2 of 2023, the Trial Court has passed the following order: “ (iii) The Commissioner shall inspect the property along with the Surveyor and note down the physical features of entire Schedule mentioned apartment building, inclusive of the common areas and the activities done by the respondents 1 and 2, and to report before this Court, the details of the same pointing out the 2/12 https://www.mhc.tn.gov.in/judis illegal encroachments, illegal conversion of the Flat Nos.1 & 2 as well as the illegal acts done by them in throwing medical wastes.”3. The learned counsel for the petitioners states that the Court can only appoint a Commissioner for ascertaining the nature of any structures or materials available in the suit property and the order directing the report to be filed pointing out illegal encroachment and illegal conversion of Flat Nos.1 and 2 as well as such illegal acts done by throwing medical wastes cannot be within the scope of a warrant issued to the Advocate Commissioner.4. The learned counsel for the petitioners would also relied on decisions of this Court in Devados Vs. A.Duraisingh, reported in 2002 (3) CTC 748, where this Court held that an Advocate Commissioner cannot be appointed to find out who is in a possession. Further, the learned counsel for the revision petitioners also contends that as against the notices issued by Chennai Metropolitan Development Authority (CMDA), the revision petitioners have challenged the same before this Court and besides this, 3/12 https://www.mhc.tn.gov.in/judis have also preferred an Appeal before the Government under Section 80A of the Town and Country Planning Act, 1971. 5. Pursuant to the directions of this Court and also orders passed by the Government, the revision petitioners have rectified the defects and compliances has also been recorded before the Hon’ble Division Bench. The learned counsel would therefore state that in such circumstances, there is no necessity for appointing an Advocate Commissioner, that too, in the manner as indicated by the Trial Court. 6. Per contra, the learned counsel for the respondent state that there is no infirmity in the order appointing an Advocate Commissioner, especially, directing the Commissioner to note down the physical features of entire schedule mentioned apartment building. He would place reliance of the decision this Court in Fawzunissa Vs. The Indian Hotel Co., Ltd, Represented by its Managing Director, in CRP. No.1642 of 2020 order dated 14.12.2020, where this Court at Paragraph No.11 has held if there is a 4/12 https://www.mhc.tn.gov.in/judis dispute regarding boundaries or physical features or allegation or physical features of the property or any allegation of encroachment as narrated by one party and disputed by the another party, then the facts have to be physically verified and the same cannot be ascertained from documents produced by the parties and it would be necessary for a Commissioner to make a local inspection.7. I have carefully considered the contentions raised by the learned counsel on either side.8. The plaintiffs have come to Court alleging illegal construction and violations committed by the defendants. It is seen that in the said suit, the petitioners in order to elucidate the nature of the violations, an Application was filed to seeking appointment of an Advocate Commissioner. The Application was resisted by the respondents/revision petitioners herein on the ground that the subject matter in dispute viz., violations are being considered by the Competent Authority viz., the CMDA and also been a 5/12 https://www.mhc.tn.gov.in/judis subject matter of writ proceedings before this Court and therefore, the Commissioner cannot be appointed at this juncture and it would only amount to a fact collection mission which was not permissible in the eye of law.9. I have gone through the order passed by the Trial Court. The Trial Court has rightly come to the conclusion that the Commissioner would have to be appointed for making a local inspection, however some of the directions issued by the Trial Court were not warranted. The Trial Court ought to have directed the Commissioner to only note down physical features and file a report. However, the Trial Court has without stopping there, has further directed the Commissioner to the illegal constructions, etc., to be noted by the Advocate Commissioner. These issues are in dispute and it is for the parties to place satisfactory evidence, oral and documentary before the Court to substantiate their respective claims.10. It is also the case of the revision petitioners that in furtherance of 6/12 https://www.mhc.tn.gov.in/judis the Government Order, in appeal proceedings, the unlawful constructions had been rectified and brought in compliance with the sanction plan. All these are issues which the Trial Court can always take note of and the report of the Advocate Commissioner would be of valuable assistance to the Court to adjudicate the issues that arise for consideration in the suit. Therefore in view of the above, while confirming the order of appointment of Advocate Commissioner, however, the order is modified to merely direct the Advocate Commissioner to note down the physical features and file a report. 11. With the above directions, this Civil Revision Petition is allowed. No costs. Connected Miscellaneous Petition is also closed. 09.07.2025Speaking/Non-speaking : Yes/NoIndex : Yes / Norkp7/12 https://www.mhc.tn.gov.in/judis P.B.BALAJI.J.,rkpToThe VII Assistant Judge, City Civil Court, ChennaiCRP.No.1990 of 2025and CMP. Nos.11444 of 202509.07.20258/12 https://www.mhc.tn.gov.in/judis IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.07.2025CORAMTHE HONOURABLE MR JUSTICE P.B. BALAJICRP.No.1990 of 2025and CMP. Nos.11444 of 20251.Mr.Roshan Dominic Jude Rayen2.Mrs.Lourdes Joavani ... PetitionersVs.1.Mrs.Bala Rajeswari2.Dr.V.Alexander3.Dr.S.Vincent4.A.Rajkumar5.Ravindran Jacob6.The Commissioner, Greater Chennai Corporation, Rippon Building, Chennai – 600 003.7.The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maaligai, Egmore, Chennai – 600 008. ... RespondentsPRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order in I.A. No.2 of 2023 in O.S. No.6721 of 2023 passed by the learned VII Assistant Judge, City Civil Court, Chennai dated 04.04.2025. 9/12 https://www.mhc.tn.gov.in/judis For Petitioners: Mr.S.Haja Mohideen Gisthi Mr.S.Abdul Mussawwir KhanFor Respondents : Mr.Thangasivan For T.K.S.Gandhi for R1 toR5 Mr.DBR. Prabhu, Standing Counsel for Corporation for R6 Mr.R.Thamarais Selvan, Standing Counsel for CMDA for R7ORDER Mr.Haja Mohideen Gisthi, the learned counsel for the petitioner made a mention expressing certain reservations about the appointment of Advocate Commissioner. 2. Learned counsel appearing on behalf of the respondent fairly submitted that he has no objection for a new Advocate Commissioner to be appointed and that an Advocate Commissioner may be appointed by this Court as well. 3. Accordingly, Mr.E.Durai Vaiyapuri, Advocate, Enrollment No.2628/2016 at No.223, NSC Bose Road, YMCA Building, 2nd Floor, 10/12 https://www.mhc.tn.gov.in/judis Chennai – 1 (Mobile No.9940460823) is hereby appointed as an Advocate Commissioner by this Court to inspect the property in question. His initial remuneration is fixed at Rs.25,000/- (Rupees twenty five thousand only).4. Mr.E.Durai Vaiyapuri, learned Advocate Commissioner, after notice to the parties, shall inspect the property in question with the assistance of the Taluk Surveyor, note down the physical features in detail and file a report before the trial Court. The Advocate Commissioner shall engage a Chartered Engineer of his choice.5. All the other terms of the order dated 09.07.2025 shall hold good and the above order shall form part and parcel of the order dated 09.07.2025. 11.07.2025sktToThe VII Assistant Judge,City Civil Court, Chennai. 11/12 https://www.mhc.tn.gov.in/judis P.B. BALAJI , J. sktCRP.No.1990 of 2025and CMP. Nos.11444 of 202511.07.202512/12