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2003 DIGILAW 1281 (MAD)

K. Thangamuthu v. D. Govindarajan and another

2003-08-13

R.BALASUBRAMANIAN

body2003
ORDER: Heard the learned counsel on either side. The revision petitioner is the defendant in O.S. No.7 of 2001 on the file of the District Munsif, Kodumudi wherein a declaration was asked for of an easementary right to light and air; prohibitory injunction and mandatory injunction. The respondents are the plaintiffs therein. Pending suit, the plaintiffs filed an application for appointment of an advocate Commissioner to inspect the suit property; note down it’s physical features and then file his report. That application was ordered. Admittedly, the advocate Commissioner visited the suit property in the absence of the defendant. It appears that such a visit was done, though a request was made by the learned counsel for the defendant before the lower Court to postpone the visit. The defendant filed objections stating that the Commissioner’s report does not reflect the correct state of facts available at the site. In the context of his objections, the defendant filed I.A. No.223 of 2001 to scrap the earlier Commissioner’s report and for appointment of a fresh advocate Commissioner. On merits, the learned trial Judge found that, to meet the ends of justice, the Commissioner must be re-directed to inspect the suit property and give a report having regard to the objections raised by the defendant. It is needless to state that such inspection should be in the presence of the defendant and his counsel. It is that order namely, reissuing the commission to the very same advocate Commissioner, that is in challenge in this revision. 2. Learned counsel for the petitioner would strenuously contend that the order of the learned trial judge in re-issuing the commission to the very same advocate Commissioner would by itself show that the earlier report of the advocate Commissioner does not deserve acceptance. If that is so, he ought to have scrapped the report and issued a fresh commission to another advocate Commissioner and not to the same advocate Commissioner, especially when an apprehension in the mind of the defendant had been expressed in the affidavit that he may not get a fair report. 3. I applied my mind tot he materials available on record. Only when a fresh commission is sought to be issued, then a duty is cast upon the Court to scrap the earlier report by giving reasons. Here, such an event has not taken place. 3. I applied my mind tot he materials available on record. Only when a fresh commission is sought to be issued, then a duty is cast upon the Court to scrap the earlier report by giving reasons. Here, such an event has not taken place. On the other hand, as already stated, the Court, finding that the inspection done by the advocate Commissioner was admittedly in the absence of the defendant and having regard to the objections taken by the defendant to the Commissioner’s report, thought it fit to re-issue the commission to the same advocate Commissioner to give an opportunity to the defendant to point out the various features which according to him, are available in the suit property. Re-issuing the commission to the very same advocate Commissioner would not equivalent to appointing a fresh advocate Commissioner, which only calls for scrapping the earlier report by giving reasons. The apprehension in the mind of the defendant that he may not get a fair report from the very same advocate Commissioner as stated in the affidavit filed in support of the application does not really call for acceptance. The allegation is too vague to be taken note of. Consequently I find illegality in the order under challenge; the revision fails and it is dismissed. No costs. The connected C.M.P. is closed.