1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION (PD)(MD)No.2182 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.R.Ramkumar 2.B.Dhanabalan 3.The Manager, Madurai West Sarvodaya Sangam, 407, Usilampatti Road, Thirumangalam Town, Thirumangalam. 4.M.Vallimayil 5.M.Saraswathiammal 6.Nagalakshmi Ammal 7.R.Pandian 8.R.Nagarajan 9.R.Murugan 10.R.Krishnan 11.Selvamaniammal 12.Ayyampillai (died) 13.K.Ponnusamy @ Sankaralingam Pillai 14.A.Rathinam 15.R.Subbulakshmi 16.S.Santhiveerapillai 17.Meenakshi 18.K.G.Meena 19.G.Vinayakamurthy 20.M.Angappan 21.P.Nagaraj 22.R.Krishnan 23.G.Mariyammal 24.G.Govindaraj 25.V.Muthukumar 26.S.Palanisamy 27.K.Veerapathirapillai 28.S.Rajendran 29.P.Pandi 30.K.Muthuvel 31.K.Rajendran 32.M.Jeyalakshmi 33.M.S.Ganesan 34.P.Rajendran 35.S.Muthusami 36.K.Sellamani .. Petitioners Vs. S.Jeyaraman .. Respondent https://hcservices.ecourts.gov.in/hcservices/ 2 Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 21.07.2011 passed in Interlocutory Application No.289 of 2011 in Original Suit No.39 of 2009 by the District Munsif Court, Periyakulam. For Petitioners : Mr.K.Appadurai For Respondent : Mr.S.Anand Chandrasekar for M/s.Sarvabhauman Associates ORDER The order dated 21.07.2011 passed in Interlocutory Application No.289 of 2011 in Original Suit No.39 of 2009 by the District Munsif Court, Periyakulam is being challenged in the present Civil Revision Petition. 2. The respondent herein as plaintiff has instituted Original Suit No.39 of 2009 on the file of the Court below for the reliefs of declaration, recovery of possession and perpetual injunction, wherein the present revision petitioners have been shown as defendants. During pendency of the same, Interlocutory Application No.289 of 2011 has been filed under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908 praying to appoint an Advocate Commissioner for the purpose mentioned therein. The Court below has dismissed the petition. Against the dismissal order, the present Civil Revision Petition has been preferred. 3. Before analysing the rival submissions made on either side, the Court has to look into the nature of the reliefs sought for in the plaint. In the plaint, it has been specifically prayed that the plaintiff is a rightful person to perform charitable work by using the suit property and also for directing the defendants to hand over possession of the same without any encumbrance. It is also prayed to pass a decree of perpetual injunction so as to restrain the defendants from interfering with the right of the plaintiff in doing charitable work. 4. The specific case of the plaintiff is that the suit property has been set apart for doing certain charitable works and the defendants are not having lawful right to perform charitable work. Under the said circumstances, the present suit has been instituted for the reliefs sought for therein. 5. The learned counsel appearing for the revision petitioners has contended that in the suit property some of the contesting defendants have put up certain buildings and only for the purpose of noting down the physical features of the suit property, the present petition has been filed, but the Court below has erroneously dismissed the same and therefore the order passed by the Court below is liable to be interfered with. 6. Per contra, the learned counsel appearing for the respondent/plaintiff has contended that since the suit property has been dedicated and set apart for doing certain charitable work, the defendants have had no manner of right so as to create any encumbrance and further the plaintiff has clearly admitted the existence of some buildings and therefore the present petition is totally unwarranted and the Court below has rightly dismissed the petition. https://hcservices.ecourts.gov.in/hcservices/ 3 7. For considering the divergent contentions raised on either side, the Court has to look into the necessary averments made in the written statement and also in the petition filed in Interlocutory Application No.289 of 2011. In paragraph No.2 of the written statement, it has been specifically admitted about the dedication of suit property for doing certain charitable work. In the petition filed in Interlocutory Application No.289 of 2011, it has been clearly stated that some of the contesting defendants have put up constructions. 8. As stated earlier, the present suit has been instituted mainly for the reliefs to the effect that the plaintiff is a rightful person to perform charitable work and consequently for directing the defendants to hand over possession of the suit property without any encumbrance. 9. Considering the nature of the main reliefs sought for in the present suit, the Court must know the nature as well as existence of construction in the suit property. Under the said circumstances, the relief sought for in Interlocutory Application No.289 of 2011 can very well be granted and further by way of allowing Interlocutory Application No.289 of 2011, the respondent/plaintiff is not going to get any prejudice. The Court below without considering the nature of the main reliefs sought for in the suit and also without considering the purpose for which Interlocutory Application No.289 of 2011 has been filed, has erroneously dismissed the petition. In view of the foregoing discussion, this Court has found that the order passed by the Court below is incorrect and the same is liable to be set aside. 10. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.289 of 2011 in Original Suit No.39 of 2009 by the District Munsif Court, Periyakulam is set aside and the petition filed in Interlocutory Application No.289 of 2011 in Original Suit No.39 of 2009 is allowed without costs and the Court below is directed to appoint an Advocate Commissioner and also directed to dispose of Original Suit No.39 of 2009 before the end of March, 2012 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(AS) /True copy/ Sub Assistant Registrar(CS) To The District Munsif, Periyakulam. Copy to : The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai. +1 CC to M/s Sarvabhauman Associates, Advocate, SR.No.41785 smn C.R.P(PD)(MD)No.2182 of 2011 and M.P(MD)No.1 of 2011 28.11.2011 TR : 07.12.2011 : 3p/4c https://hcservices.ecourts.gov.in/hcservices/