Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1111 (MAD)

Thirupuram Ammal v. Needhivendhan

2005-07-19

R.BANUMATHI

body2005
Judgment :- This revision is preferred against the Order of District Munsif, Sirkali made in I.A.No. 278 of 2003 in O.S.No.93 of 1999, dated 19.3.2004 allowing the petition filed under Order 17 Rule 9 of C.P.C. ordering issuance of the Commission to another Advocate Commissioner. Plaintiff is the Revision Petitioner. 2. O.S.No. 93 of 1999:- Suit in O.S.No. 93 of 1999 was filed by the Plaintiff for permanent injunction in respect of wall situate on the North of the suit house and on the South of the house of the Defendant. At the instance of the Plaintiff, earlier, an Advocate Commissioner was appointed, who has filed the report. 3. I.A.No. 734 of 1999:- Earlier Advocate Commissioner was appointed exparte. After the Defendant has entered appearance, he has filed this application to direct the Advocate Commissioner to visit the suit property once again. This application was allowed and the Advocate Commissioner has filed the report. 4. Thereafter, the Defendant has filed an application in I.A.No. 341 of 2002 to appoint fresh Advocate Commissioner to make a local inspection along with a surveyor. One Mr. P. Rangaraj was appointed as Advocate Commissioner. He has inspected the suit property and filed his report and plan. 5. I.A.No. 219 of 2003:- The Defendant has again filed this application to re-issue or appoint a fresh Commissioner to make local inspection along with a photographer. The said application was allowed and warrant was re-issued to the same Advocate Commissioner viz., P.Rangaraj. 6. Aggrieved over the re-issuance of the warrant to the said Rangaraj, the Plaintiff has filed Civil Revision Petition in C.R.P.No.962 of 2003 challenging the order in I.A.No. 219 of 2003. Confirming the order of the lower Court in I.A.No.219 of 2003, this Court has dismissed the said Revision. While dismissing the revision petition, this Court has observed that " there may not be any more repeated attempts of appointments of Commission so as to delay the proceedings". 7. I.A.No. 278 of 2003:- This application was filed to appoint fresh Advocate Commissioner in the place of Mr.Rangaraj. The Defendant has alleged that in view of adverse remark against the Commissioner, the Commissioner might be aggrieved and on account of the same, some error is likely to occur while reporting. On that ground, the Defendant sought for appointment of some other Advocate as Commissioner. The Defendant has alleged that in view of adverse remark against the Commissioner, the Commissioner might be aggrieved and on account of the same, some error is likely to occur while reporting. On that ground, the Defendant sought for appointment of some other Advocate as Commissioner. The application in I.A.No. 278 of 2003 was allowed appointing one S. Mariappan as the Advocate Commissioner. 8. Present Civil Revision Petition is filed challenging the order in I.A.No. 278 of 2003. The learned Counsel for the Revision Petitioner submitted that when the re-appointment of Advocate Commissioner Mr.Rangaraj has been confirmed by this Court in C.R.P.No. 962 of 2003, the trial Court was not justified in appointing fresh Advocate Commissioner. Submitting that the lower Court has no power to interfere with the order of this Court made in C.R.P.No. 962 of 2003, the learned counsel has urged to set aside the impugned order. 9. Superseding the order in I.A.No.219 of 2003 whether the lower Court was right in appointing fresh Advocate Commissioner is the point that arises for consideration in this Revision Petition. 10. Even at the out set, the impropriety in the impugned order is to be pointed out. While dismissing the C.R.P.No. 962 of 2003 (thereby confirming the order of re-appointment of the Advocate Commissioner Mr.Rangaraj), this Court has observed "that there may not be any more repeated attempts of appointments of Commission so as to delay the proceedings". In violation of such direction and observation, the lower Court has appointed Mr.S.Mariappan as the Advocate Commissioner. The practice of repeatedly seeking appointment of Advocate Commissioner is not appreciable. As noted earlier, at the instances of the Defendant, at least three times Commissioners have been appointed. When the order of re-appointment of Mr.Rangaraj has been confirmed by this Court, the lower Court was not right in appointing fresh Advocate Commissioner. 11. By dismissing the earlier Civil Revision Petition, this Court has confirmed the order of re-issuance of warrant to Mr.Rangaraj. The same cannot be circumvented by filing another petition for appointment of fresh Advocate Commissioner. The impugned order in I.A.No. 278 of 2003 cannot be sustained. 12. Appointment of fresh Advocate commissioner has serious consequences. Unless the Court has reasonable doubts about the fairness of the previous Advocate Commissioner, in supersession of the earlier report, fresh Advocate Commissioner cannot be appointed. The impugned order in I.A.No. 278 of 2003 cannot be sustained. 12. Appointment of fresh Advocate commissioner has serious consequences. Unless the Court has reasonable doubts about the fairness of the previous Advocate Commissioner, in supersession of the earlier report, fresh Advocate Commissioner cannot be appointed. The averments in the affidavit that " in view of the adverse remarks about the Commissioner, he might be aggrieved and on account of the same, some error is likely to occur while reporting" is vague and baseless. Courts have disapproved the indiscriminate appointment of more than one Commission. In A.I.R. 1995, Madras 274,(GOPALAKRISHNAN - Vs. - P. SHANMUGAM) this Court has observed:- "Mechanical and indiscriminate appointment of more than one commission, merely because the Court thinks the other party to the proceedings may not be prejudiced or that the expenses for the commission are going to be borne by the applicant for the purpose would create an unhealthy practice of not only more than one report on records, but also would lead to the vice of a person or party to the proceedings not being satisfied with the commissioner's report seeking for the appointment of successive commissioners till he is able to get a report of his choice". In view of the well-settled position, it would not be appropriate to appoint fresh Advocate Commissioner. This is all the more so, when the High Court has confirmed the earlier order in I.A.No. 219 of 2003. The learned District Munsif has not rightly appreciated the facts and circumstances of the case and the conduct of the Defendant in seeking appointment of Advocate Commissioner repeatedly. The impugned order suffers from material irregularity and cannot be sustained. 13. For the forgoing reasons, the order made in I.A.No. 278 of 2003 in O.S.No.93 of 1999, dated 19.3.2004 on the file of the District Munsif, Sirkali is set aside and this Civil Revision Petition is allowed. The earlier order in I.A.No. 219 of 2003, dated 4.4.2003 re-appointing the Commissioner Mr.P.Rangaraj(confirmed by this Court in C.R.P.No. 962 of 2003) continues to hold good. In the circumstances of the case, there is no order as to costs. Consequently, C.M.P. No. 6987 of 2004 is closed.