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Madras High Court · body

2001 DIGILAW 93 (MAD)

Rukmani and others v. A. S. Chinnaiah

2001-01-25

K.GNANAPRAKASAM

body2001
ORDER: Heard the Advocate for both sides. 2. The petitioner herein filed an application for appointment of Advocate Commissioner before the trial Court and the same came to be dismissed on two grounds: (1) The petition is highly belated, and (2) that if an Advocate Commissioner is appointed, he has to seek the help of the Village Administrative Officer, the Surveyor and almost in all the cases, the Advocate Commissioner complains that the Revenue Department, more particularly the Survey Department is not cooperating in carrying out the survey and also refuses to bring the field measurement book, village accounts etc., inspite of the fact that the said situation has already been brought to the notice of the higher officials concerned. 3. It is represented that the Village was taken over by the Government under the Tamil Nadu Estates Abolition Act 26 of 1948 and patta was issued based upon the said proceedings. The defendant denies the boundaries of the suit property and in fact, he had taken out an application for the appointment of the Advocate Commissioner, but the same was dismissed and he could not prefer a revision against the said order, due to paucity of funds. Considering the counter filed by the defendant, it is made out that the appointment of an Advocate Commissioner is very much required in the case and hence, it cannot be said that the petition filed by the petitioner is frivolous. Ofcourse, there is a delay in filing the petition, which has got to be deplored, but, for that matter, the rights of the parties should not be prejudiced, by the dismissal of the petition and the parties should have all reasonable opportunities to establish their case. In the said circumstances, I feel that the appointment of an Advocate Commissioner is warranted in this case. 4. With regard to the apprehension of delay, which could possibly be caused by Revenue/ Survey Department as perceived by the trial Court, we cannot ignore the observation. But, that cannot be the reason to deny the opportunities to the parties, by dismissing the petition. The trial Court feels that the Revenue Department is not co-operating with the Court to carry out survey work, which would delay the disposal of the suit. But, that cannot be the reason to deny the opportunities to the parties, by dismissing the petition. The trial Court feels that the Revenue Department is not co-operating with the Court to carry out survey work, which would delay the disposal of the suit. It is a common knowledge that many suits are pending for want of the report of the Advocate Commissioner and especially in partition suits, final decree could not be passed for several months and years also, as reports are not filed. The Advocate Commissioner is not able to file the report, as they are not able to secure the help of Survey Department to carry out the survey/ division. The Revenue Department is expected to render all necessary help and assistance to Court and if the said assistance is not forthcoming, it is not as if, the Court is helpless. Advocate Commissioner is an Officer of the Court and he is entitled to have all the assistance from the Revenue/ Survey Department, with regard to survey. That in order to alleviate the difficulties, experienced by the trial Courts, the following directions became necessary. (1) Trial Courts, on the date of the appointment of the Advocate Commissioner, fix the date and time for the inspection, giving sufficient time not less than two weeks time, and not more than three weeks time from the date of appointment, to carry out the inspection work and the report shall be filed within four weeks time, in a suit for partition and within two weeks time, in all other cases, from the date of inspection and the time stipulated should not be extended, except on an application by the Advocate Commissioner for valid reasons. (2) Trial Court if in its opinion feels that the Assistance of Surveyor is necessary to carry out the inspection work, it shall incorporate the same in the order that, “Advocate Commissioner shall carry out the inspection with the assistance of Surveyor”, in which case, it shall send the copy of the order to the concerned Tahsildar and to Taluk Surveyor/ Firka Surveyor or the concerned Surveyor in the Taluk to assist the Advocate Commissioner in all respects, in carrying out measuring, locating, identifying and fixing the suit property/ properties, with the help of all the revenue records, Court documents etc. (3) If for any reason, the Taluk Surveyor/ Firka Surveyor or the concerned Surveyor is not able to assist the Advocate Commissioner on the date and time fixed by the Court, the concerned Surveyor shall have to file a memo to the Court, setting out the reasons for his inability to assist the Advocate Commissioner on the appointed date and the Court may, for valid reasons, fix some other date, convenient to all the parties concerned and if for any reason, if the parties do not consent for a date, the Court shall fix the date and time on its own accord. (4) If the Revenue Department, i.e., the Survey Department Taluk Surveyor/ Firka Surveyor or the concerned surveyor fails to comply with the orders of the Court, the same shall be deemed as an “Act of contempt” and necessary suo motu contempt proceedings shall be initiated by the Court against the concerned Surveyor and the department as well. (5) The concerned surveyor shall file a memo to Court, claiming his remuneration and the same shall be fixed and ordered to be paid, either by the plaintiff/ defendant through Court, as per the orders of the Court. 5. It is also brought to our notice that the petition for the appointment of Advocate- Commissioner is not taken out by the concerned party to the suit at the earliest point of time and if it is reflected/ pointed out by the Court, in the judgment and that thereafter only the party is making application before the First Appellate Court and at times at the stage of second appeal, which causes enormous delay of the disposal of the suit. To avoid such a contingency, the following direction is given to the trial Courts. 6. The trial Courts are further directed that sooner the written statement is filed and issues framed, and the parties are at issues, with regard to the location, identification and overlapping of the suit properties, the Court shall appoint an Advocate Commissioner suo motu to inspect the suit properties and locate the plaintiff’s properties as well as defendant’s properties, in dispute, with the help of Taluk/ Firka Surveyor and file a report as per direction given above. 7. In the result C.R.P. is allowed and the order passed by the trial Court in I.A. No.611 of 2000 is set aside and the said petition is restored to file. 7. In the result C.R.P. is allowed and the order passed by the trial Court in I.A. No.611 of 2000 is set aside and the said petition is restored to file. The trial Court shall appoint the Advocate Commissioner on the guideline given above. Consequently connected C.M.P. is closed.