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Judgment
M. Venugopal, J.—The revision petitioner/petitioner/plaintiff has filed this present civil revision petition as against the order dated 19.2.2007
in I.A. No. 19789 of 2007 in O.S. No. 5406 of 2005 passed by the XVI Assistant Judge, City Civil Court, Chennai in dismissing the application
filed under Order XXVI Rules 2 and 9 of CPC filed by the revision petitioner/petitioner/plaintiff praying for an appointment of an Advocate
Commissioner to inspect the suit schedule building in comparison with the sanctioned plan issued by the C.M.D.A authorities/Corporation
authorities and to submit the report etc.
The trial Court, while passing orders in I.A. No. 19789 of 2006 has inter alia come to the conclusion that ''the revision
petitioner/petitioner/plaintiff cannot seek the assistance of the Advocate Commissioner to prove his case and that the revision
petitioner/petitioner/plaintiff is bound to prove his case by independent evidence and documents'' and has resultantly dismissed the application as
not maintainable.
In the memorandum of grounds, the revision petitioner/petitioner/plaintiff has taken the pleas that the trial Judge has failed to look into the written
statement filed by respondents 3 and 4 wherein they have stated that they have initiated proceedings u/s 256 of the Madras Municipalities
Corporation Act for the illegal and unauthorised construction put up by the respondents 1 and 2 without observing the norms of the Corporation
while put up construction and that the trial Court has also erred in not taking note of the revision petitioner/petitioner/plaintiff is not in a position to
get the extract of the sanctioned plan issued by the Corporation authorities to the respondents 1 and 2 and moreover respondents 1 and 2 have not
filed any documentary evidence to establish or defend that they have constructed the building as per the sanctioned plan and that the trial Court has
committed miscarriage of justice in dismissing the application and therefore prays for allowing this revision petition.
In I.A. No. 19789 of 2006, the revision petitioner/petitioner/plaintiff has inter alia averred that respondents 1 and 2 on the western side of his
property demolished the old titled building and putting up a new pucca building in their portion and by so doing, they have not followed the
Corporation Rules and Regulations to leave five feet set back while constructing their building and even after the completion before the fourth
respondent, respondents 1 and 2/defendants 1 and 2 have failed to follow the norms and rules and with a view to infringe the petitioner''s right of
enjoyment of natural light and air, put up the ground floor RCC roof without leaving any space around the same and that a notice has been issued
to the third respondent and fourth respondent on 21.3.2005 but no action has been taken till date and the defendants 1 and 2 in their written
statement have mentioned that they have constructed a building as per the sanctioned plan and that they have not violated the norms and rules of
the Corporation of Chennai in constructing their building etc and therefore it is just and necessary to appoint an Advocate Commissioner to inspect
the suit schedule property in comparison with the sanctioned plan permission of the Corporation of Chennai or CMDA as the case may be and to
file a report before the trial Court for proper appreciation and for just decision of the matter on merits.
The respondents 1 and 2 in their counter have inter alia stated that the civil revision petitioner/petitioner/plaintiff has filed earlier I.A. No. 15719
of 2005 in the above suit on the same pleadings and grounds seeking similar relief and that application has been closed and the cause of action
mentioned in this application is just reproduction of cause of action mentioned in I.A. No. 15719 of 2005 and that when the suit is not
maintainable, the application is not maintainable in law and liable to be dismissed.
The respondents 1 and 2/defendants 1 and 2 in their written statement filed in the main suit have stated that the construction is made as per
norms laid down by the Corporation of Chennai and that the construction has already been completed as per the sanctioned plan and that they
have never deviated from the sanctioned plan in their construction and there is no illegal or unauthorised construction and that there is cause of
action for the suit and that the revision petitioner/petitioner/plaintiff is always interested in indulging activities with a view to extract money from the
Association in which the plaintiff was the Secretary.
Added further the specific stand taken by the respondents 1 and 2/defendants 1 and 2 in the written statement is that they have put put up
superstructure in accordance with the Rules and therefore, there is no question of revision petitioner/petitioner/plaintiff requiring the defendants to
observe the norms and rules set out by the Corporation of Chennai or CMDA by leaving five feet open space on eastern side at the time of
construction for free air and light etc.
Admittedly, the main suit has been filed by the revision petitioner/petitioner/plaintiff praying for the relief of permanent injunction restraining
defendants 1 and 2, their men, agents servants claiming through them from proceeding with any illegal and unauthorised construction over and
above the sanction plan at Door No. 5/35, 1st Main Road, Jai Nagar, Arumbakkam. Chennai-106 by interfering with the plaintiff''s right of
enjoyment of natural light and air on the western side of plaintiff''s property without due process of law and the relief of mandatory injunction
directing the defendants to remove the additional illegal and unauthorised construction raised by the defendants 1 and 2 over and above the
sanction plan lies on the eastern side of the property situated at Door No. 5/35, 1st Main Road, Jai Nagar, Arumbakkam, Chennai-106 which is
more fully described in the ""B"" schedule property of the plaint.
As a matter of fact, in I.A. No. 19789 of 2006, the revision petitioner/petitioner/plaintiff has prayed for the relief of appointment of an Advocate
Commissioner in respect of an alleged illegal and unauthorised construction in the suit schedule property etc. The revision
petitioner/petitioner/plaintiff has to prove his case in the manner known to law. Since the revision petitioner/petitioner/plaintiff has to prove that the
respondents 1 and 2/defendants 1 and 2 have put up an unauthorised construction in disregard to the sanctioned plan and this, they can do by
means of adducing independent oral and documentary evidence and more over when the revision petitioner/petitioner/plaintiff has already filed a
similar application in I.A. No. 15719 of 2005 and the same being dismissed as not pressed, then the revision petitioner/petitioner/plaintiff is
estopped from projecting the second application praying for an appointment of an Advocate Commissioner and an Advocate Commissioner
cannot be appointed to help the revision petitioner/petitioner/plaintiff in procuring or collecting evidence which the revision
petitioner/petitioner/plaintiff himself can produce/obtain and in that view of the matter, this revision petition fails and the same is hereby dismissed in
the interest of justice.
In the result, this civil revision petition is dismissed leaving the parties to bear their own costs. The order passed by the trial Court in I.A. No.
19789 of 2006 in O.S. No. 5406 of 2005 is affirmed by this Court for the reasons assigned in this revision. It is made clear that the disposal of
I.A. No. 19789 of 2006 will not preclude the revision petitioner/petitioner/plaintiff to establish his case before the trial Court in the manner known
to law. The trial Court, after framing necessary issues (if not done already), is directed to dispose of O.S. No. 5406 of 2005 within a period of
three months from the date of receipt of a copy of this order. Consequently, connected M.P. No. 1 of 2008 is also dismissed.