M JAMAL MOHAMED Vs. SAVANI TRANSPORT P LTD

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the Order dated 25.08.2006 in I.A.No.21350 of 2005 in O.S.No.6956 of 2004 on the file of VII Additional Judge, City Civil Court, Chennai. THIS Civil Revision Petition has been filed by the plaintiff in O.S.No.6956 of 2004 to set aside the Order dated 25.08.2006 in I.A.No.21350 of 2005 in O.S.No.6956 of 2004 on the file of VII Additional Judge, City Civil Court, Chennai.

(2.) THE plaintiff in O.S.No.6956 of 2004 is the revision petitioner before this Court. THE suit in O.S.No.6956 of 2004 has been filed by the revision petitioner/plaintiff against the respondent herein, to pay a sum of Rs.5,74,240/- (Rupees Five lakhs seventy four thousands two hundred and forty only) by way of damages. It is stated by the revision petitioner in the plaint that the respondent/defendant is a tenant in respect of the entire ground floor of the premises bearing Door No.250, Thambu Chetty Street, Chennai-1 and the same was let out for the non-residential purpose of using it as a Lorry Transport Booking Office cum Godown. As the respondent stocked and stored inflammable chemicals and other materials in the premises, there was a fire accident on 14.06.2004. the fire was put down by the Fire Service people after seven fire service units were put into operation. A case was also registered against the respondent/defendant. THE plaintiff inspected the property immediately with a qualified engineer and assessed the damages caused to the godown in particular and to the building in general. According to the plaintiff, even if a sum of Rs.5,74,240/- is spent for repairing, it is impossible to get the original strength and stability of the building. THE plaintiff caused a notice to the defendant on 11.08.2004 calling upon him to vacate the premises and also to pay the damages. Hence, he filed O.S.No.6956 of 2004 directing the respondent/defendant to pay a sum of Rs.5,74,240/- by way of damages. A written statement was filed by the respondent/defendant contending that the details of damages as stated in the plaint are exaggerated and the plaintiff's engineer's assessment of damages and estimate of cost of repairs are blown out of proportion as a proper assessment at the instance of the defendant reveals. He also questioned the experience and the credibility of the engineer who assessed the damages. Hence, he denied his liability to pay a sum of Rs.5,74,240/- towards the damages. To this written statement filed by the respondent/defendant, the revision petitioner/plaintiff filed a reply statement reiterating his earlier averments as stated in the plaint. Pending suit, the respondent/defendant filed I.A.No.21350 of 2005 under Order 26 Rule 9 of CPC to appoint an Advocate Commissioner to inspect the suit property with the assistance of a qualified engineer to assess the age and type of building and the alleged damages caused by the fire accident on 14.06.2004 and the cost of repairing the same and also to file a report with a plan. In the affidavit filed in support of I.A.No.21350 of 2005, the respondent/defendant stated that the details of damages due to the fire accident and the estimate of cost of repairs as stated by the revision petitioner/plaintiff are false in every detail and the cost of repair claimed by the revision petitioner/plaintiff under all the heads are exaggerated. It is further stated that the respondent/defendant is not aware of the qualification, experience and the credibility of the revision petitioner's engineer. He further contended that the building is over sixty years old and the suit itself is an attempt to extort money from the respondent/defendant. THErefore, he filed I.A.No.21350 of 2005 for the aforesaid relief. This was resisted by the petitioner/plaintiff by filing a counter affidavit, wherein it is stated that the written statement was filed in the month of February,2005 and the application for appointment of Advocate Commissioner was filed at the fag end of the month of November,2005. It is contended by the revision petitioner/plaintiff that under the guise of appointment of an Advocate Commissioner, the revision petitioner cannot gather evidence in respect of the defence put forth by them. It is further stated that there is a total change in the appearance and conditions of the ground floor after repairs and renovation and partition of the godown and the inspection of the Advocate Commissioner at this juncture would not be helpful in any manner to assess the extent of the damages caused and suffered at the time of the fire accident. THE trial Court by order dated 24.08.2006 allowed the I.A.No.21350 of 2005 and aggrieved by the same, the above civil revision petition has been filed by the plaintiff in the suit.

(3.) PER contra, the learned counsel for the respondent submits that the revision petition is not maintainable under Article 227 of the Constitution of India, as no prejudice is caused to the petitioner/plaintiff. He further submits that an appointment of an Advocate Commissioner is to make a local investigation and that will help the Court to arrive at the right conclusion. Therefore, he submits that the revision petition is to be dismissed as not maintainable. In support of his contentions, the learned counsel for the respondent placed his reliance on the following judgments. 1) 1998 (2) SCC 192 (Gulzar Ali v. State of H.P), 2)2002 (8) SCC 400 (Essen Deinki v. Rajiv Kumar), 3) 1985 (1) MLJ 318 (Ponnuswamy Pandaram v. Salem Vaiyappamalai Jangamar sangam rep. by its President Palanivel).