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2005 DIGILAW 1069 (MAD)

N. Satheesh Kumar v. C. D. Sekhar & Others

2005-07-15

R.BANUMATHI

body2005
Judgment :- This Civil Revision Petition is directed against the order of Principal District Munsif, Bhavani made in I.A.No.640 of 2003 in I.A.No.565 of 2003 in O.S.No.180 of 2003, partly allowing the Petition filed under Order 26 Rule 10(3) C.P.C read with Section 151 C.P.C, re-appointing the Advocate Commissioner and directing him to file Supplementary Report. Defendant is the Revision Petitioner. 2. O.S.No.180 of 2003:- The Suit Property relates to the landed property in R.S.No.799/8,9,10,11 and the Cart Track thereon. The Suit Property originally belonged to Ramanathan Chettiar, who has purchased the Suit Property by the Sale Deed dated 17.04.1937. Subsequently, the said Ramanathan Chettiar and his Wife Sellammaiachi sold the Suit Property and other properties to one Sengoda Gounder by a Sale Deed dated 16.04.1956. Subsequently, the said Sengoda Gounder sold the Suit Property to one Lakshiammal. The Suit Property and other properties were purchased by one Srinivasan Pillai and his Wife Lakshmiammal under various Sale Deeds. During their life time, Srinivasan Pillai and his Wife Lakshmiammal have executed Registered Will in respect of the properties belonging to them on 05.08.1963, bequeathing in favour of four Sons with a condition that the Sons are entitled to enjoy the properties during their life time and after their life time, the properties allotted to the Sons to be devolved upon their Male Heirs. The Father of Plaintiffs 1 and 2 – C.S.Duraisamy obtained the Suit Property through the above said Will dated 05.08.1963 and enjoying the Property till his death. After his death, Plaintiffs 1 and 2 have succeeded to the Suit Property and other properties and absolutely enjoying the same. There is a Nilavial Cart Track situate in R.S.No.799/9 as shown in the Plaint Plan. The Nilavial Cart Track is enjoyed by the Plaintiffs absolutely. There had been no occasion or necessity for the Defendant to use the Nilavial Cart Track in R.S.No.799/9. By mistake, the name of the Vendors of the Defendant was included in the Patta in respect of Nilavial Cart Track in R.S.No. 799/9. Taking advantage of the same, the Defendant has been attempting to put up construction in the property situated in R.S.No.799/10, which absolutely belongs to the Plaintiffs. Hence, the Plaintiffs have filed the Suit for Permanent Injunction, restraining the Defendant, his Men, Agents and Servants from disturbing peaceful possession and enjoyment of the Suit Property by the Plaintiffs. 3. Taking advantage of the same, the Defendant has been attempting to put up construction in the property situated in R.S.No.799/10, which absolutely belongs to the Plaintiffs. Hence, the Plaintiffs have filed the Suit for Permanent Injunction, restraining the Defendant, his Men, Agents and Servants from disturbing peaceful possession and enjoyment of the Suit Property by the Plaintiffs. 3. I.A.No.565 of 2003:- In this Application filed by the Plaintiffs under Or.26 R.9 C.P.C., Advocate Commissioner was appointed to note down the physical features in and around the Suit Property. The Commissioner had visited the Suit Property and filed his Report on 06.08.2003. On 13.08.2003, the Defendant has filed his Objection to the Report seeking for scrapping the Report of the Advocate Commissioner. 4. I.A.No.640 of 2003:- This Application has been filed by the Defendant to scrap the Report of the Advocate Commissioner filed in I.A.No.565 of 2003 and to appoint fresh Advocate Commissioner to inspect the Suit Property. 5. The Application was resisted by the Plaintiffs by filing elaborate Counter Statement. According to the Plaintiffs, the Defendant is an influential person, making vexatious allegations against the Plaintiffs as well as the Court Commissioner. In the Report already filed by the Commissioner, the Commissioner has noted the physical features of the Suit Property. The Suit Property was proposed to construct a Combined Court Complex Building. The Judicial Officers and other officials have also visited the Suit Property along with the Members of the Bhavani Bar about three years ago. While so, the Defendant cannot deny the existence of the Cart Track. The allegations levelled against the Commissioner are unsustainable. Since the earlier Report is exhaustive, the Second Commissioner cannot be appointed. 6. Upon consideration of the contentions of both parties, learned District Munsif allowed the Petition finding that if there is any defect in the earlier Report, the Same Advocate Commissioner has to be reappointed. In Paragraph 15 of the order, learned District Munsif has pointed out the defects which are to be rectified. The Trial Court was of the view that some defects or deficiencies pointed out cannot be the ground for scrapping the Report and to appoint a Fresh Commissioner. In Paragraph 15 of the order, learned District Munsif has pointed out the defects which are to be rectified. The Trial Court was of the view that some defects or deficiencies pointed out cannot be the ground for scrapping the Report and to appoint a Fresh Commissioner. Pointing out that no valid grounds are made out for appointment of Second Advocate Commissioner, learned District Munsif reappointed the same Commissioner and directing him to file the Supplement Report answering the queries pointed out in Paragraph 15 of the Impugned Order. 7. Aggrieved over the reappointment of the same Advocate Commissioner, the Defendant has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has submitted that when the fairness of the previous Commissioner has been doubted, the Trial Court ought to have appointed another Advocate Commissioner. It is further submitted that when allegation of bias is levelled against the previous Commissioner, the Trial Court erred in reappointing the same Advocate Commissioner. Learned Counsel for the Revision Petitioner urged to appoint some other Advocate Commissioner, who has long experience in the Bar. 8. Countering the arguments, learned counsel for the Respondents / Plaintiffs has submitted that there is proper exercise of discretion in reappointing the Advocate Commissioner. Submitting that the earlier Report is exhaustive and the Supplementary Report has been filed into the Court, learned Counsel for the Respondents has submitted that if there is any further defect, the Revision Petitioner / Defendant would have the opportunity to examine / cross-examine the Commissioner. Learned counsel for the Respondents has also drawn the attention of the Court to the filing of the Supplementary Report in I.A.No.640 of 2003 and closing of the Petition in I.A.No.640 of 2003 and submitted that the Revision Petition against the Interlocutory Application, which has been already closed is not maintainable. 9. Upon consideration of the contentions of both parties, the short point that arises for consideration is whether the same Advocate Commissioner could be re-appointed to file Supplementary Report and whether the Impugned Order suffers from any jurisdictional error warranting interference, exercising the power under Article 227 of the Constitution of India. 10. The Commissioner was appointed in I.A.No.565 of 2003 on 25.07.2003. The Commissioner has visited the Suit Locality on 26.07.2003. At the time of inspection, both parties and the respective Counsel were present. 10. The Commissioner was appointed in I.A.No.565 of 2003 on 25.07.2003. The Commissioner has visited the Suit Locality on 26.07.2003. At the time of inspection, both parties and the respective Counsel were present. Advocate Commissioner has filed an elaborate Report, noting the existence of the Cart Track, as is clear from the following:- By a cursory reading of the earlier Report, it is clear that the Report is elaborate and a detailed one. 11. Elaborate objections have been filed by the Revision Petitioner / Defendant, almost taking objection to every observation of the Commissioner. Even at the time of filing the Objection, the Defendant has sought for scrapping the Report. 12. Under Order 26 Rule 10(3) C.P.C, the Report of the Commissioner is evidence in the Suit and forms part of the records. The report of the Commissioner has therefore, evidentiary value and can be utilised by either of the parties as evidence in support of their case. This provision cannot be set at naught by seeking to scrap the report. The effect of scrapping the report is that the report which is evidence in the case and part of the record ceases to be so and cannot be referred to by the parties. The mere fact that the Commissioner has failed to note certain features which according to the defendant were important does not mean that the whole report should be scrapped. 13. Under Order 26 Rule 10(3) C.P.C, adequate provision is made to safeguard the interest of the parties. If the Court is dissatisfied with the Report, the Court can direct the Commissioner to rectify the defect or deficiency taking into consideration the objections and the evidence let in, in that behalf and direct the Commissioner to file a Supplementary Report. As far as possible, the Commissioner, who has already visited the Suit Property should be directed to file a Supplementary Report. This view is fortified by the decision reported in VEEPPANATHAR ALIAS KARUPPANNAN AND ANOTHER ..VS.. KALIAPPAN (2000 (1) L.W.893). 14. In accordance with the well settled position, learned District Munsif has re-appointed the same Advocate Commissioner, directing him to file the Supplementary Report. The re-appointment of the Advocate Commissioner is well in accordance with the well settled position and there is no valid reason warranting interference. 15. The Commissioner has noted the existence of the Pathway and the obstruction thereon. In accordance with the well settled position, learned District Munsif has re-appointed the same Advocate Commissioner, directing him to file the Supplementary Report. The re-appointment of the Advocate Commissioner is well in accordance with the well settled position and there is no valid reason warranting interference. 15. The Commissioner has noted the existence of the Pathway and the obstruction thereon. The Defendant has filed the elaborate objection, denying the new look of Asbestos Shed and such other aspects. Elaborately going into the Report and the Objection raised by the Defendant, learned District Munsif formulated five questions and directed the Advocate Commissioner to file the Supplementary Report, answering the five queries. Thus, the lapses pointed out in the earlier Report are sought to be cured by reappointing the same Advocate Commissioner. Learned District Munsif has carefully considered the First Report. After recording the reasonings in writing, learned District Munsif came to the conclusion that the Report of the Advocate Commissioner is satisfactory and that only the defects pointed out are to be rectified. The Trial Court was right in not interfering with the Report of the Advocate Commissioner, which has been filed into the Court after careful local investigation. 16. Allegations of bias and unfairness are levelled against the Advocate Commissioner. Onbehalf of the Revision Petitioner / Defendant, fresh Advocate Commissioner is sought for praying to appoint another Advocate Commissioner with fairly long experience in the Bar. The allegations of bias are vague and unfounded. In the absence of definite allegations, the earlier Report cannot be superseded. Learned District Munsif rightly reappointed the same Advocate Commissioner, directing him to rectify the defects. 17. Interference with the earlier report and careful Investigation is not appreciable. It is not safe for the Court to accept the objections raised by the Defendant, denying every observation of the Commissioner. The careful execution of the work and the detailed Report cannot be upset on the basis of the vague allegations. The Impugned Order in declining to appoint fresh Advocate Commissioner and also declining to scrap the earlier Report is well balanced. Under the facts and circumstances of the case, there is no reason to appoint the Second Advocate Commissioner. 18. It is relevant to note yet another aspect. In I.A.No.640 of 2003, the same Advocate Commissioner was reappointed. The Advocate Commissioner has inspected the Property on 03.09.2003. Under the facts and circumstances of the case, there is no reason to appoint the Second Advocate Commissioner. 18. It is relevant to note yet another aspect. In I.A.No.640 of 2003, the same Advocate Commissioner was reappointed. The Advocate Commissioner has inspected the Property on 03.09.2003. On 05.09.2003, the Commissioner has filed the Report and the case was adjourned to 12.09.2003 for filing objection, if any. Objection was not filed and the Petition was closed on 12.09.2003. The present Revision Petition has been filed on 22.09.2003 against the order made in I.A.No.640 of 2003. Either in the Grounds of Revision or in the supporting Affidavit filed along with the Civil Miscellaneous Petition, there is no reference to the filing of the Supplementary Report and the closing of I.A.No.640 of 2003. In all fairness, the Revision Petitioner ought to have brought to the notice of the Court about the filing of the Supplementary Report and the closing of the Application in I.A.No.640 of 2003. But, that was not to be so. 19. This Civil Revision Petition has been filed under Article 227 of the Constitution of India. The power of the High Court under Article 227 of the Constitution of India can be invoked only in rare cases where the Impugned Order suffers from any jurisdictional error or when the finding is based on no material. In this case, the Impugned Order does not suffer from any jurisdictional error. This Civil Revision Petition has no merits and the same is bound to fail. 20. For the foregoing reasons, the order dated 28.08.2003 passed by the Principal District Munsif, Bhavani in I.A.No.640 of 2003 in I.A.No.565 of 2003 in O.S.No.180 of 2003 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P.No. 15827 of 2003 is dismissed.