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2008 DIGILAW 3836 (MAD)

M. Jamal Mohamed v. Savani Transport (P) Ltd. ,

2008-10-22

S.RAJESWARAN

body2008
Judgment : This Civil Revision Petition has been filed by the plaintiff in O.S.No.6956 of 2004 to set aside the Order dated 25.08.2006 in I.A.No.21350 of 2005 in O.S.No.6956 of 2004 on the file of VII Additional Judge, City Civil Court, Chennai. .2. The plaintiff in O.S.No.6956 of 2004 is the revision petitioner before this Court. The suit in O.S.No.6956 of 2004 has been filed by the revision petitioner/plaintiff against the respondent herein, to pay a sum of Rs.5,74,240/- (Rupees Five lakhs seventy four thousands two hundred and forty only) by way of damages. It is stated by the revision petitioner in the plaint that the respondent/defendant is a tenant in respect of the entire ground floor of the premises bearing Door No.250, Thambu Chetty Street, Chennai-1 and the same was let out for the non-residential purpose of using it as a Lorry Transport Booking Office cum Godown. As the respondent stocked and stored inflammable chemicals and other materials in the premises, there was a fire accident on 14.06.2004. the fire was put down by the Fire Service people after seven fire service units were put into operation. A case was also registered against the respondent/defendant. The plaintiff inspected the property immediately with a qualified engineer and assessed the damages caused to the godown in particular and to the building in general. According to the plaintiff, even if a sum of Rs.5,74,240/-is spent for repairing, it is impossible to get the original strength and stability of the building. The plaintiff caused a notice to the defendant on 11.08.2004 calling upon him to vacate the premises and also to pay the damages. Hence, he filed O.S.No.6956 of 2004 directing the respondent/defendant to pay a sum of Rs.5,74,240/- by way of damages. A written statement was filed by the respondent/defendant contending that the details of damages as stated in the plaint are exaggerated and the plaintiffs engineers assessment of damages and estimate of cost of repairs are blown out of proportion as a proper assessment at the instance of the defendant reveals. He also questioned the experience and the credibility of the engineer who assessed the damages. Hence, he denied his liability to pay a sum of Rs.5,74,240/-towards the damages. To this written statement filed by the respondent/defendant, the revision petitioner/plaintiff filed a reply statement reiterating his earlier averments as stated in the plaint. He also questioned the experience and the credibility of the engineer who assessed the damages. Hence, he denied his liability to pay a sum of Rs.5,74,240/-towards the damages. To this written statement filed by the respondent/defendant, the revision petitioner/plaintiff filed a reply statement reiterating his earlier averments as stated in the plaint. Pending suit, the respondent/defendant filed I.A.No.21350 of 2005 under Order 26 Rule 9 of CPC to appoint an Advocate Commissioner to inspect the suit property with the assistance of a qualified engineer to assess the age and type of building and the alleged damages caused by the fire accident on 14.06.2004 and the cost of repairing the same and also to file a report with a plan. In the affidavit filed in support of I.A.No.21350 of 2005, the respondent/defendant stated that the details of damages due to the fire accident and the estimate of cost of repairs as stated by the revision petitioner/plaintiff are false in every detail and the cost of repair claimed by the revision petitioner/plaintiff under all the heads are exaggerated. It is further stated that the respondent/defendant is not aware of the qualification, experience and the credibility of the revision petitioners engineer. He further contended that the building is over sixty years old and the suit itself is an attempt to extort money from the respondent/defendant. Therefore, he filed I.A.No.21350 of 2005 for the aforesaid relief. This was resisted by the petitioner/plaintiff by filing a counter affidavit, wherein it is stated that the written statement was filed in the month of February,2005 and the application for appointment of Advocate Commissioner was filed at the fag end of the month of November,2005. It is contended by the revision petitioner/plaintiff that under the guise of appointment of an Advocate Commissioner, the revision petitioner cannot gather evidence in respect of the defence put forth by them. It is further stated that there is a total change in the appearance and conditions of the ground floor after repairs and renovation and partition of the godown and the inspection of the Advocate Commissioner at this juncture would not be helpful in any manner to assess the extent of the damages caused and suffered at the time of the fire accident. The trial Court by order dated 24.08.2006 allowed the I.A.No.21350 of 2005 and aggrieved by the same, the above civil revision petition has been filed by the plaintiff in the suit. 3. I have heard the learned counsel appearing for the petitioner and the learned counsel for the respondent and I have also gone through the documents and judgments filed in support of their submissions. .4. The learned counsel for the revision petitioner submits that under the guise of appointing an Advocate Commissioner, the respondent/defendant sought for gathering evidence which is not permissible in law. In support of his submissions, the learned counsel for the petitioner relied on the following decisions:1) 2006 (4)LW 970 (R.Sankarappan V. R.Jayachandran), 2) 2002(2)CTC 199 (Saraswathy and another V.Viswanathan), 3) 1998(3) LW 773(Gopal Chettiar and 3 others v. P.A.A.Sahul Hameed and another), 4) 2001(8)SCC 97 (Estralla Rubber v. Dass Estate (p) Ltd., (this was also relied on by the respondents Counsel) 5) 1999 (1) CTC 172 (D.S. Reddy rep. by his power agent D.P.S.Reddy v. Dr.G.V.Reddy Rep. by his power agent M.S.Murthy) 6) 2006(4) LW 522 (Muthusamy Gounder v. Mylsamy Gounder), 7) AIR 2000 Cal 91 (The owners and parties interested in the Vessel M.V."Baltic Confidence" v. The State Trading Corporation of India Ltd., and another) 8) 2006 (4) LW 178 (T.K.Krishnamurthy vs. Tamil Nadu Water and Drainage Board, rep. by its Senior Engineer RWS, Division and another) 9) 2006 (4) LW 516 (Chinnathambi and others vs. Anjalai) 10)2007 (4) TNLJ 593(Civil) (Ms/.B.P.V. Classic Tea Factory Private Limited, rep. by its Managing Director D.K.Bashkaran vs. M/s.Forbes and Company Tea Brokers, rep. by its Chief Executive and Power of Attorney agent M.A.Chacko, Forber House, Coonoor). 5. Per contra, the learned counsel for the respondent submits that the revision petition is not maintainable under Article 227 of the Constitution of India, as no prejudice is caused to the petitioner/plaintiff. He further submits that an appointment of an Advocate Commissioner is to make a local investigation and that will help the Court to arrive at the right conclusion. Therefore, he submits that the revision petition is to be dismissed as not maintainable. In support of his contentions, the learned counsel for the respondent placed his reliance on the following judgments. He further submits that an appointment of an Advocate Commissioner is to make a local investigation and that will help the Court to arrive at the right conclusion. Therefore, he submits that the revision petition is to be dismissed as not maintainable. In support of his contentions, the learned counsel for the respondent placed his reliance on the following judgments. 1) 1998 (2) SCC 192 (Gulzar Ali v. State of H.P), 2) 2002 (8) SCC 400 (Essen Deinki v. Rajiv Kumar), 3) 1985 (1) MLJ 318 (Ponnuswamy Pandaram v. Salem Vaiyappamalai Jangamar sangam rep. by its President Palanivel). 6. I have considered the rival submissions carefully with regard to facts and citations. 7. Before proceeding further, let me consider the decisions relied on by both the learned counsel appearing for both the parties to cull out the legal principles settled thereon. In 1998(3) LW 773 (cited supra), 2) 2006 (4) LW 178 (cited supra), 3) 2006 (4) LW 970 (cited supra), 4) 2006 (4) LW 516 (cited supra) and 5) 2007 (4) TNLJ 593 (cited supra), the law laid down by this court is that, the Advocate Commissioner cannot be appointed to gather and create evidence. In 2006(4) LW 522 (cited supra), this Court held that the courts shall not appoint an advocate Commissioner in a mechanical manner without considering the need for it, over looking the facts pleaded by the parties. 8. In 1999(1) CTC 172 (cited supra), this court held that an order appointing an Advocate Commissioner is a discretionary order and there should be sufficient reasons for an order appointing an Advocate Commissioner. In 2002(2) CTC 199 (cited supra), this Court held that no prejudice would be caused by the appointment of an Advocate Commissioner for the purpose of inspecting the property and submitting a report on the physical features, measurements, etc. Though, the commissioner cannot decide the disputes, his instruction and report would help the Court in deciding the issue. 9. In 2001 (8) SCC 97 (cited Supra), the Honble Supreme Court held that Article 227 does not confer an unlimited prerogative upon the High Court to correct all wrong decisions or to prevent the hardships caused thereby. Though, the commissioner cannot decide the disputes, his instruction and report would help the Court in deciding the issue. 9. In 2001 (8) SCC 97 (cited Supra), the Honble Supreme Court held that Article 227 does not confer an unlimited prerogative upon the High Court to correct all wrong decisions or to prevent the hardships caused thereby. Power under Article 227 can be exercised to interfere with the orders of the Lower Courts and Tribunals only in cases of serious dereliction of duties and flagrant violation of fundamental principles of law or justice where in the absence of interference by the High Court, grave injustice would remain unchecked and uncorrected. 10. In AIR 2000 Cal 91 (cited supra), a division Bench of the Calcutta High Court held that when a suit is filed by the plaintiff for damages, it is for the plaintiff to prove his claim by adducing independent evidence and the Court has no jurisdiction to appoint a receiver for the purpose of collecting evidence and more so by assessing the damages allegedly suffered by the plaintiff. As such, a judiciary function cannot be delegated and it is open for the plaintiff to appoint his own surveyor and get the damages assessed and prove his report in the suit. The Calcutta High Court further held that a Commissioner cannot be appointed to collect evidence in respect of the damaged goods which are in the custody of the plaintiff. In 1985 (1) MLJ 381 (cited supra), this Court held that the local investigation is the best way to find out the position. In 1998 (2) SCC 192 (cited supra), the Honble Supreme Court held hat there is a natural tendency on the part of an expert witness to support the view of the person who called him and there are very many so-called experts who are remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them. 11. In 2002(8)SCC 400 (cited supra), the Honble Supreme Court held that exercise of jurisdiction under article 226 of the Constitution is limited and it does not confer an unlimited authority to collect all errors or even wrong decisions made within the jurisdiction of the courts below. 12. In the light of the above decisions of the Honble Supreme Court and the High Courts, let me consider the facts of the present case. 12. In the light of the above decisions of the Honble Supreme Court and the High Courts, let me consider the facts of the present case. Admittedly, the suit is for damages amounting to a sum of Rs.5,74,240/-. According to the revision petitioner/plaintiff, the fire accident took place because of the negligence of the respondent/defendant in storing inflammable materials and articles in the demised premises. It is admitted by the revision petitioner/plaintiff that he engaged the services of an engineer to assess the damages and his report was also filed along with the suit. While the assessment of the plaintiffs engineer was questioned by the respondent/defendant on the ground of his inexperience and incredibility, he sought to appoint an Advocate Commissioner to inspect the property with the assistance of a qualified engineer to assess the damages caused by the fire accident. 13. In so far as appointing an Advocate Commissioner to inspect the property and to note down its physical features are concerned, such appointment of the Commissioner and his filing the report, noting down the physical features and measures, will definitely give a first hand information about the condition of the building to the Court which my help the Court in arriving at a just conclusion. This exercise of noting down the physical features by the Advocate Commissioner will not prejudice any one and therefore, that cannot be questioned under Article 227 of the Constitution of India. In the present case, the respondent/defendant has also sought the appointment of the Advocate Commissioner to assess the damages caused by the fire accident and it will amount to gathering evidence on behalf of the respondent/defendant which is impermissible in law as held by this Court in a number of judgments cited supra. 14. I am of the considered view that the trial Court while correctly appointing the Advocate Commissioner, ought not to have directed the Commissioner to assess the damages caused and the expenses incurred for the renovation. So, to this extent, the civil revision petition is to be allowed and the order of the trial Court is to be modified. 15. Accordingly, while upholding the order of the Trial Court, in appointing an Advocate Commissioner, I direct the Advocate Commissioner to inspect the suit property, to note down its physical features and measurements with regard to its age, type etc., and to file a report before the trial Court. 15. Accordingly, while upholding the order of the Trial Court, in appointing an Advocate Commissioner, I direct the Advocate Commissioner to inspect the suit property, to note down its physical features and measurements with regard to its age, type etc., and to file a report before the trial Court. It is made clear that the Advocate Commissioner shall not assess the alleged damages caused by the fire accident and the cost of the repairing of the same with the assistance of a qualified engineer. The job of the Advocate Commissioner is to simply note down the physical features of the building and its measurements and to submit a report and it is for the revision petitioner/plaintiff to prove his case by letting in acceptable evidence in support of his claim for damages. 16. In the result, the civil revision petition is partly allowed as indicated above. No costs. Consequently, connected M.P.No.2 of 2008 is closed.