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2008 DIGILAW 1247 (MAD)

A. Sulthan v. Mohammed Dasthagir

2008-04-10

S.RAJESWARAN

body2008
ORDER 1. The civil revision petition is filed against the order dated 1.9.2007 wade in I.A. No. 2214 of 2007 in O.S. No. 696 of 2004 dismissing the application praying to appoint an Advocate Commissioner. 2. The defendants in O.S. No. 696 of 2004 are; the revision petitioners. They are aggrieved by the order of the trial Court dated 1.9.2007 dismissing the I.A. No. 2214 of 2007 filed by them under Order 26 Rule 9 for appointment of an advocate Commissioner. 3. The plaintiff filed O.S. No. 696 of 2004 for the following reliefs. a) For permanent injunction restraining the defendants, their men, agents, servants and all other persons acting on behalf of defendants, under their instructions from letting out to the sullage waste water on the side of the plaintiff’s building which will corrode the building and cause damages in any manner whatsoever; b) For permanent injunction restraining the defendants, their men, agents, servants and all other persons acting on behalf of defendants, under their instructions from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property in any manner whatsoever. 4. The revision petitioners as defendants entered appearance and filed written statement contesting the suit. Pending suit, the revision petitioners filed an I.A. No. 2214 of 2007 for appointment of an advocate Commissioner to measure the property of the plaintiff and the defendants based on the sale deed with the help of the Taluk Surveyor as per the Revenue Records and note down the physical features of the property. 5. In their affidavit filed in support of the I.A. No. 2214 of 2007, it is stated that the revision petitioners are the lawful owners who are in possession and enjoyment of their property and the respondent/plaintiff trespassed into their property to an extent of 9 inches and only to overcome the same, the suit itself has been filed. This was resisted by the respondent/plaintiff by filing a counter by contending that there is no dispute regarding the measurement of the property and therefore the question of appointing an Advocate Commissioner does not arise. 6. The trial Court dismissed the application mainly on the ground that (1) the suit is for bare injunction; (2) the application is belated as the plaintiff was already examined in chief on 28.6.2007 and (3) the identification of the property need not be decided in this suit for bare injunction. 7. 6. The trial Court dismissed the application mainly on the ground that (1) the suit is for bare injunction; (2) the application is belated as the plaintiff was already examined in chief on 28.6.2007 and (3) the identification of the property need not be decided in this suit for bare injunction. 7. Heard the learned counsel for the petitioners and the learned counsel for the respondent. I have also gone through the documents and judgments referred to by them in support of their submissions. 8. The learned counsel for the petitioners contended that the approach of the trial Court is contrary to the well settled principles in this regard and for this purpose he relies oh the following judgments. 1) Ponnuswamy Pandaram v. Salem Vaiyappamalai Jangamar Sangam rep. by its President Palanivel, having its office at Vaiyappamalai, Tiruchengode Taluk (1985) 1 MLJ 380 2) H.M. Kari Gowder v H.M. Halan 1995 (2) CTC 89 3) Kuppanna Gounder and Another 1998 (3) CTC 650 9. Per contra, the learned counsel for the respondent submitted that the trial Court has correctly decided the issue and the same need not be interfered with by this Court under Article 227 of the Constitution of India. 10. I have considered the rival submissions carefully with regard to facts and citations. 11. In Ponnuswamy Pandaram v. Salem Vaiyappamalai Jangamar Sangam rep. by its President Palanivel, having its office at Vaiyappamalai, Tiruchengode Taluk (supra), this Court while considering an application, which was rejected by the trial Court for appointment of an Advocate Commissioner in a suit for bare injunction held as under: “8. Coming to the question as to whether, on the basis that the order passed by the Court below is a case decided, there is a warrant for interference within the meaning of Section 115 of the Code, I find that it is so. A controversy, as we would see from the pleadings, has arisen as to whether the constructions put up by the third defendant are within his land or whether they have encroached into the lands of the plaintiff. A local investigation is the best way to find out the position and the party, namely, the third defendant coveting to place the evidence before the Court through local investigation by the Commissioner cannot be shut out of that right. A local investigation is the best way to find out the position and the party, namely, the third defendant coveting to place the evidence before the Court through local investigation by the Commissioner cannot be shut out of that right. A misconception, has weighed in the mind of the Court below when it reasoned that there is no dispute about the ownership of S.No. 289/1 by the third defendant. That is not the point in issue. Shutting out the evidence which a party is entitled to place before Court to substantiate his case, definitely decides that right of the party, adversely against him and in this view, the order passed by the Court below is a “case decided” and apart from that, on merits the order passed by the Court below comes within the mischief of the ratio adumbrated in Section 115 of the Code. There has been a failure to exercise jurisdiction vested in it by the Court below to a patent misconception of the position and this obliges me to interfere in revision.” 12. From the above, it is very clear that a local investigation is the best way to find out the position and that right cannot be shut out. 13. In H.M. Kari Gowder v H.M. Halan (supra), this Court held as under: “12......To sustain the prayer asked for the appointment of a Commissioner to visit the suit properties and to enumerate the existing valuable trees with its kind and nature and enumerating the quantity of the same and to note down the cut trees if any and with its relative stems and to file a report thereon is an equitable remedy, upon finding a prima facie case, and even, the Court can grant the relief of appointment of Commissioner so as to enable the respective parties and Court to have the first-hand knowledge about the allegation and its counter allegations, and this cannot be disputed.” 14. From the above, it is clear that the Court can grant the relief of appointment of Commissioner to enable the respective parties and the Court to have the first hand knowledge about the allegations and counter allegations and this cannot be denied. 15. From the above, it is clear that the Court can grant the relief of appointment of Commissioner to enable the respective parties and the Court to have the first hand knowledge about the allegations and counter allegations and this cannot be denied. 15. In Ruppanna Gounder and Another (supra), this Court while considering an application which was rejected by the trial Court, filed for appointment of an advocate Commissioner to compare the signatures held that “rejection of the application on the ground of delay alone is not justified and the approach of the Court should be to render substantial service”. 16. In the light of the above judgments, if the rejection of the I.A. No. 2214 of 2007 by the trial Court is considered, I am of the considered view that the trial Court has not exercised its jurisdiction properly and the reasons given by the trial Court for dismissing the application are not legally sustainable. 17. The first reason given by the trial Court is that the suit was for bare injunction and the application is beyond the scope of the suit. 18. Even in a bare injunction suit, appointment of an advocate Commissioner could be allowed on the basis of the pleadings. In the present case, the plaintiff prayed for two permanent injunction reliefs; one for restraining the defendants from letting out to the sullage waste water on the side of the plaintiffs building which will corrode the building and cause damages and the second injunction is for restraining the defendants from interfering with the plaintiff’s possession. 19. The contention of the revision petitioner is that they do not let out sullage waste water and it is the plaintiff who encroached their property. 20. In the light of the above accusations and counter accusations, gathering a first hand knowledge about the truthfulness the allegations and counter allegations by local investigation would facilitate the Court to decide the issue more effectively rather than shutting out the remedy and driving them out to initiate fresh legal proceedings. 21. It is true that the revision petitioners are guilty of delay in filing I.A. No. 2214 of 2007 but on that ground alone the application should not be rejected summarily. 22. Hence, I am inclined to allow the I.A. No. 2214 of 2007 on the condition that the revision petitioners pay a sum of Rs. 21. It is true that the revision petitioners are guilty of delay in filing I.A. No. 2214 of 2007 but on that ground alone the application should not be rejected summarily. 22. Hence, I am inclined to allow the I.A. No. 2214 of 2007 on the condition that the revision petitioners pay a sum of Rs. 1,000/- (Rupees one thousand only) towards cost to the respondent/plaintiff within two weeks from the date of receipt of copy of this order. 23. It is made clear that if the cost is not paid within the stipulated time the order passed by me gets recalled automatically without further reference to this Court. 24. In the result, the civil revision petition is allowed. No costs. The connected Miscellaneous petition is closed. Revision allowed.