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2007 DIGILAW 3628 (MAD)

K. M. A. Wahab & Others v. Eswaran & Another

2007-11-16

A.KULASEKARAN

body2007
Judgment :- 1. The plaintiffs are revision petitioners herein, who filed the Suit for specific performance in O.S. No.309 of 2005 on the file of the learned Additional District and Sessions, Fast Track Court No.1, Coimbatore. The first respondent/defendant has filed I.A. No.697 of 2006 for appointment of an Advocate Commissioner, which was allowed. Hence the present Revision. 2. Learned counsel appearing for the petitioners submits that the Suit is one for specific performance. The respondent claims that he is in possession of the suit property. To that effect, he filed an affidavit in support of I.A. No.697 of 2006, wherein it is alleged, "I further submit that I was in actual and physical possession of the suit property cultivating cholam in the suit property. There was no demarcating stones, ditches and roads as stated by the respondents/plaintiffs in the suit property. The respondents/plaintiffs have not formed any layout in the suit property. Under such circumstances, it is deemed necessary to note down the physical features of the suit property and take photographs with the help of photographer and measure it with the help of the surveyor". 3. Pointing out the said statement, learned counsel for the petitioner argued that there is no dispute regarding identity of the suit property and for proving possession the respondent cannot seek for appointment of the Advocate Commissioner. The Court below, erroneously appointed the Advocate Commissioner, which is contrary to the provisions under Order 26, Rule 9, C.P.C. In support of his contention, the learned counsel relied on the judgments reported in Jabeen Taj v. M. Parveen Bank, 2005 (3) MLJ 24 and Clrandrasekaran and 6 others v. V. Doss Naidu, 2006 (2) LW 159 . So far as the first judgment cited above is concerned, it is held as follows: "14. Since the defendants 1 and 2 attempted to trespass and also attempted to alienate, the property allotted to the share of the plaintiff as per decree in O.S. No.44 of 1995, the same necessitated the plaintiff to file the Suit O.S. No.196 of 2004 for declaration and permanent injunction. Though the Trial Court as per order dated 3. Since the defendants 1 and 2 attempted to trespass and also attempted to alienate, the property allotted to the share of the plaintiff as per decree in O.S. No.44 of 1995, the same necessitated the plaintiff to file the Suit O.S. No.196 of 2004 for declaration and permanent injunction. Though the Trial Court as per order dated 3. 2004 in I.A. Nos.252 and 253 of 2003, made the interim injunction already granted till the disposal of the Suit O.S. No.196 of 2004, however, the Trial Court has committed an error in passing order in I.A. No.291 of 2004, filed by the second defendant ordering to maintain status quo by both parties till the disposal of the Suit. Such order being irregular, it is to be set aside. 15. In as much as there is no dispute with regard to the identify of the property, the Trial Court has rightly refused to appoint Advocate-Commissioner in I.A. No.370 of 2004, filed by the second defendant and therefore, the said order is liable to be confirmed.” So far as the second judgment cited above is concerned, it is held as follows: "17. The Commissioner is sought for to note down the existence of the house, age of the house, Guava trees and Coconut trees and their age. Though the Appointment of Advocate-Commissioner is sought for under the pretext of noting down the physical features, indirectly it only seeks to find out the factum of possession. The material issue in the Suit is relating to the nature of possession and lawful right of the Defendants (if any). That material issue of determining the possession cannot be left to the Advocate-Commissioner. The Appointment of Advocate-Commissioner for making enquiry about the factum of possession of the property in dispute is improper since the same has to be adjudicated upon framing issues and recording the evidence. 18. Advocate-Commissioner could be appointed only when the Court is satisfied that on the materials available on record, the party is not able to produce the desired evidence, the Court may assist the party to appoint the Advocate-Commissioner to obtain the evidence. If really, the defendants are in possession of the suit property, the possession could be proved by producing House Tax Receipts, Adangal and such other desired oral evidence. If really, the defendants are in possession of the suit property, the possession could be proved by producing House Tax Receipts, Adangal and such other desired oral evidence. When the concurrent findings in the earlier litigation in O.S. No.6 of 1972 and A.S. 164 of 1977 are against the defendants, it would not be appropriate to appoint the Advocate-Commissioner to note down the existence of the defendants. In the facts and circumstances of the case, particularly in the light of the earlier judgment in O.S. No.6 of 1972 and A.S. No.164 of 1977, there cannot be mechanical and indiscriminate appointment of Advocate-Commissioner. The contention that the defendants would pay the remuneration and that the plaintiff may not be prejudiced by appointment of Advocate-Commissioner has no force. 19. ..… Power is conferred on the Court to appoint Commissioner to make local inspection not to collect evidence, but only to obtain evidence, which is a peculiar nature which could be obtained only on spot inspection. Possession of the defendants in S. No.8/1 could be well proved by adducing appropriate evidence. In that view of the matter also, the order of the Lower Court declining to appoint Advocate-Commissioner is to be confirmed." 4. Quoting the above said judgments, it is submitted by the learned counsel for the petitioners that even though the respondent alleged that no prejudice would be caused and the cost of the Advocate-Commissioner be borne by the respondent, the said reasons cannot be grounds for appointing the Advocate-Commissioner and prayed for setting aside the order passed in I.A. No.697 of 2006. 5. Learned counsel for the respondent submits that the petitioner has alleged that after the agreement dated 21. 1993, they took possession of the suit property, they have leveled the lands by engaging bulldozer and spent enormous amount for the purpose of leveling the land, forming layout, carving out roads and digging up ditches and also planted demarcating stories and made the layout fit. Hence, in order to not down the physical features, it is absolutely necessary to appoint an Advocate-Commissioner, so that he can give a report, which will be helpful to assist the Court. In respect of the issues involved, the learned counsel has relied on two judgments, Pillaiyar v. Ganesan, 2000 (1) CTC 279 and Saraswathy v. Viswanathan, 2002 (2) CTC 199 : 2002 (2) MLJ 133 . In respect of the issues involved, the learned counsel has relied on two judgments, Pillaiyar v. Ganesan, 2000 (1) CTC 279 and Saraswathy v. Viswanathan, 2002 (2) CTC 199 : 2002 (2) MLJ 133 . So far as the first judgment cited above is concerned, it is held as follows: "10. In the instant case, as already noticed, the lower Court after merely paraphrasing the earlier contentions directed the appointment of an Advocate-Commissioner. In my view, this is a case where one has to travel beyond the order of lower Court to find out whether the ultimate decision by the lower Court to appoint an Advocate-Commissioner can be justified. The respondents have clearly stated in their affidavit in support of the Application for the appointment of an Advocate-Commissioner that the revision petitioner themselves have been using the Suit second item as common pathway for generations, that this has been suppressed by the revision petitioner/plaintiff and he had filed the Suit and the Injunction Application with false details and that after filing of the Suit he was making attempt to block the common pathway. Having regard to this specific stand taken by the respondents in my view, the lower Court was justified in appointing an Advocate-Commissioner to visit the suit property, note down the physical and other features and file a report along with a plan. Merely because the learned District Munsif has given elaborate reasons for ordering the Application, the order need not be set aside and it will be inequitable. The apprehension the Commissioner visited the property and noted down the physical and other features and filed a report along with a plan, the petitioner might obliterate the state of affairs obtaining at the time of the filing of the Suit. It is not an uncommon occurrence that under the cloak of interim orders parties attempt to create the sate of affairs matching their case." "17. This is a clear case where it is necessary to obtain evidence which from its peculiar nature can only be had on the spot. The order of the lower Court does not suffer from any illegality or irregularity nor has it been passed in error of jurisdiction though supportive reasons for the conclusion could have been given by the lower Court.” So far as the second judgment cited above is concerned, it is held as follows: "14. The order of the lower Court does not suffer from any illegality or irregularity nor has it been passed in error of jurisdiction though supportive reasons for the conclusion could have been given by the lower Court.” So far as the second judgment cited above is concerned, it is held as follows: "14. As already pointed out, absolutely no prejudice would be caused by the appointment of an Advocate-Commissioner for the purpose of inspecting the property and submitting his report on the physical features, measurements, etc. Though the Commissioner cannot decide the dispute, his inspection and report would help the Court in deciding the dispute. The two decisions relied on by the lower Court do not apply to the facts of the present case.” Pointing out the above said judgments, learned counsel for the respondent would submit that appoint of a Advocate-Commissioner to note down the physical features is justified and no prejudice will be caused to the petitioner by the appointment of the Advocate-Commissioner for the purpose of inspecting the property and submitting a report on the physical features measurement, etc. 6. This Court has carefully considered the arguments put forth on either side. Order 26, Rule 9, C.P.C. states as follows: “9. Commissions to make local investigations.-- In any Suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made Rules as to the persons to whom such commission shall be issued, the Court shall be bound by such Rules.” It is evident from the abovesaid provision of law that a Court may appoint a Commissioner in any Suit where it deems a local investigation to be requisite for the purpose of elucidating any matter in dispute. It is necessary to point out in the affidavit filed in support of I.A. No.697 of 2006, it is stated by the respondent therein that he is alone in possession by cultivating the suit property and only to seek to find out the factum of possession, he sought for appointment of the Advocate-Commissioner under the pretext of taking of the physical features indirectly. Such reasons ought to have been rejected by the Trial Court as untenable. As far as the factum of possession is concerned, the Court alone gather evidence through the parties and it cannot entrust the said matter to the Advocate-Commissioner to collect the evidence. As held in the judgment reported in Jabeen Taj v. M. Parveen Banu, 2005 (3) MLJ 24 , inasmuch as there is no dispute with regard to the identity of the property, the Trial Court has no reason to appoint the Advocate-Commissioner. Similarly, in the other judgment reported in Chandrasekaran and 6 others v. V. Doss Naidu, 2006 (2) LW 159 , it is held that though remuneration is paid by the party, who sought for appointment of the Advocate-Commissioner, as such no prejudice will be caused to the other side, is not at all relevant factor for appointment of the Advocate-Commissioner. 7. The judgments relied on by the respondent have no application to the facts on hand. 8. Taking into consideration the facts and circumstances involved in the case on hand and also the judgment relied upon by the learned counsel for the petitioners, this Court is of the view that the order appointing the Advocate-Commissioner passed in LA. No.697 of 2006 is unsustainable in law. Hence, the same is set aside. Accordingly, the Revision is allowed. No costs.