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2008 DIGILAW 4406 (MAD)

Velmurugan v. Joseph

2008-11-27

M.VENUGOPAL

body2008
Judgment :- The revision petitioner/respondent/first defendant has projected this civil revision petition as against the order dated 05.09.2008 in I.A.No.1277 of 2008 in O.S.No.393 of 2008 passed by the District Munsif cum Judicial Magistrate, Ambattur in appointing an Advocate Commissioner in an application filed by the respondent/petitioner/ plaintiff under Order XXVI Rule 9 of Civil Procedure Code. 2. The trial Court in I.A.No.1277 of 2008 has appointed Thiru. S. Krishnamoorthy as an Advocate Commissioner and has directed him to identify, inspect and note down the physical features of the suit property with the help of Taluk Surveyor and to file his report and directed the matter to be called on 14.08.2008. .3. According to the learned counsel for the revision petitioner /first defendant, the order of the trial Court passed in I.A.No.1277 of 2008 is contrary to law and that the present suit O.S.No.393 of 2008 on the file of District Munsif-cum-Judicial Magistrate, Ambattur is not maintainable in law. Inasmuch as the relief sought for therein is hit by the principles of Order II Rule 2 of Civil Procedure Code and further that the respondent/plaintiff has filed the suit O.S.No.3086 of 2008 on the file of VIII Assistant City Civil Court, Chennai and ought to have claimed the relief which he is presently claiming in O.S.No.393 of 2008 on the file of District Munsif-cum-Judicial Magistrate, Ambattur and since the respondent/plaintiff has not sought all the reliefs arising from the same cause of action, a subsequent suit without the leave of the Court is clearly barred and the trial Court has not appreciated of the fact the prayer for appointing an Advocate Commissioner to identify the suit property is not in consonance with the relief claimed in the suit viz., O.S.No.393 of 2008 and for procuring evidence the Commissioner shall not be appointed and therefore, prays for allowing the revision in the interest of justice. 4. In the plaint, the respondent/plaintiff has prayed for a relief of permanent injunction restraining the first defendant his men, agents, servants, representatives or any one acting on his behalf from anyway alienating or encumbering the suit property by registering any documents before the second defendant office by depriving plaintiffs right and title of the suit property. 5. 4. In the plaint, the respondent/plaintiff has prayed for a relief of permanent injunction restraining the first defendant his men, agents, servants, representatives or any one acting on his behalf from anyway alienating or encumbering the suit property by registering any documents before the second defendant office by depriving plaintiffs right and title of the suit property. 5. In I.A.No.1277 of 2008 the respondent/plaintiff has averred that he has purchased the suit schedule property by means of sale deed dated 28.02.2008 and is in possession and enjoyment of the suit property ever since the date of his purchase and that the revision petitioner/first defendant attempted to interfere with the peaceful possession and enjoyment of the suit property and that in I.A.No.7603 of 2000 in O.S.No.3086 of 2008 he has obtained an interim order and after filing the above suit the revision petitioner/ first defendant has filed O.S.No.221 of 2008 on the file of this Court in respect of this property namely, vacant Plot Survey No.73, Golden George Nagar, Murugan Sulochana Street, Mugappair Village, Ambattur Taluk, Thiruvallur District, Patta No.1413 as per Patta No.426/3 measuring an extent of 2400 sq.ft. and that the revision petitioner/first defendant claims the above mentioned property in Survey No.426 which fact is incorrect and disputed by him and that the Survey No.426 is for away from the suit property and therefore, has prayed for an appointment of an Advocate Commissioner to inspect and note down the physical features of the suit property with the help of Taluk Surveyor so that the suit property can be well established that it lies in Survey No.425 which is the plaintiffs suit property. .6. The learned counsel for the respondent/plaintiff submits that the order of the trial Court in appointing the Advocate Commissioner in I.A.No.1277 of 2008 cannot be found fault with for the simple reason that the respondent/plaintiff has only prayed for the relief to identify, inspect and note down the physical features of the suit property by means of an appointment of an Advocate Commissioner with the assistance of Taluk Surveyor and that the trial Court has rightly appointed an Advocate Commissioner to identify, inspect and note down the physical features of the suit property with the assistance of Taluk Surveyor and to file his report and therefore, there is no need for this Court to set aside the order passed by the trial Court in this regard. 7. The learned counsel for the respondent/plaintiff contends that the Inspector attached to the City Land Office, Ambattur has given a certificate dated 110. 1998 addressed to Chinnaraj of Permual Koil Street, Mugappair, Chennai-600 050 indicating that in Tiruvallur District, Ambattur Circle, No.64 Mugappair Village, 0.03 acre land in Survey No.425 in Ward H, Block No.76, City Survey No.78 stands in the name of Jayalakshmi W/o.Mani, Chinnaraj, S/o.Appavu and Maria Filomina W/o.Chinnaraj and the same has been registered in the record to that effect. 8. Generally, the object of appointment of Commissioner under Order XXVI Rule 9 of Civil Procedure Code is to enable the Court to properly appreciate and assess the evidence on record. Moreover, the object of appointment of Commissioner is not to gather evidence but to elucidate the matter which are local in character and which can be obtained at the spot. Where there is a dispute as regards the identity of suit property a Court of law can appoint an Advocate Commissioner with the assistance of a Taluk Surveyor or a trained Surveyor. When the pleadings raise a dispute in regard to the identity of the suit land the appointment of Commissioner with the assistance of Taluk Surveyor or survey commission under Order XXVI Rule 9 of Civil Procedure Code is proper, in the considered opinion of this Court. In this connection, this Court points out the decision K. Regunatha Rao V. Tumula Jailaxmi AIR 1988 Orissa at page 30, 32 wherein it is held that a local investigation by a Commissioner can be made where visit to the spot is necessary for instance to find out on which plot the disputed land lies. In fact, where the controversy between the parties is the area of the land or identification or location of an object or the land, the appointment of Commissioner is an essential, requisite or proper one, in the considered opinion of this Court. 9. In a case where the trial Court appointed the Commissioner to ascertain whether portion of the plaintiffs plot was wrongly included in defendants plot in record of rights, the trial Court in its discretion, accepted Commissioners report and rejected the defendants objections and it was held that the High Court would not interfere in revision, as per decision Balaichandra V. Radharam De (AIR 1986 Cal 386). 10. 10. It is true that a Court of law cannot appoint an Advocate Commissioner at the mere asking of a party as a matter of routine. 11. The learned counsel for the revision petitioner/respondent/ first defendant submits that the prayer in the main suit is for the relief of permanent injunction against the revision petitioner/first defendant his men, agents, servants or any one acting on his behalf from anyway alienating or encumbering the suit property by registering any documents before the second defendant office by depriving plaintiffs right and title of the suit property. However, in the application for appointment of Commissioner in I.A.No.1277 of 2008, the respondent/plaintiff has prayed for the relief of appointment of an Advocate Commissioner to identify, inspect and note down the physical features of the suit property with the help of Taluk Surveyor which is not inconfirmity with the main relief of the suit and therefore, the said order passed by the trial Court in appointing an Advocate Commissioner to identify the suit property etc. is liable to be set aside. 12. As a revisional Court, this Court can take into consideration not only the facts existing on the date of filing of the suit but also the subsequent events. The learned counsel for the respondent/plaintiff informs this Court that the Commissioner has inspected the property and he is to submit his report and at that time the revision petitioner/ first defendant has filed the revision petition and obtained the interim stay. 13. The learned counsel for the revision petitioner submits that the respondent/plaintiff has to amend his plaint in regard to the relief of declaration pertaining to the suit property and without amending the plaint for the relief of declaration in respect of the suit property, it is not open to the respondent/plaintiff to file an application for appointment of Commissioner and to obtain an exparte order in regard to the appointment of Advocate Commissioner. 14. It is pertinent to point out that Order VI Rule 17 deals with amendment of pleadings, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings etc. and therefore, since the respondent/plaintiff is a dominus litus in the suit, this Court opines that it is for him to exercise the option of amending the plaint. .15. and therefore, since the respondent/plaintiff is a dominus litus in the suit, this Court opines that it is for him to exercise the option of amending the plaint. .15. Since the present civil revision petition has arisen in lieu of the trial Court allowing the I.A.No.1277 of 2008 for appointment of Advocate Commissioner, it is not necessary for this Court to go into the factual or mixed question of factual and legal aspect of either applicability of Order II Rule 2 of Civil Procedure Code or the present suit O.S.No.393 of 2008 is hit by the principles of constructive res judicata in this revision, in the considered opinion of this Court. 16. On a careful consideration of respective contentions, this Court opines for properly and correctly appreciating and assess the matter in issue in the suit, the appointment of Commissioner made by the Court in I.A.No.1277 of 2008 is a correct one and therefore, the appointment of Advocate Commissioner Thiru. S. Krishnamoorthy to identify, inspect and note down the physical features of the suit property with the help of Taluk Surveyor is a necessary and essential one and therefore, this Court is not interfering with the discretion exercised by the trial Court in appointing the Advocate Commissioner in I.A.No.1277 of 2008 and therefore, the civil revision petition fails and the same is hereby dismissed. 117. In the result, the Civil Revision Petition is dismissed to promote substantial cause of justice. The order passed by the trial Court in I.A.No.1277 of 2008 is confirmed for the reasons assigned by this Court in this revision. There shall be no order as to costs. 118. In view of the controversies/disputes involved in the present suit O.S.No.393 of 2008 on the file of District Munsif-cum-Judicial Magistrate, Ambattur, this Court directs the Advocate Commissioner appointed by the trial Court in I.A.No.1277 of 2008 to inspect the suit property once again and note down the physical features of the same with the help of a qualified Taluk Surveyor from the revenue department and to submit his detailed report with plan. The Commissioner shall inspect the suit property after giving notice to parties to the suit and it is open to the revision petitioner/first defendant to raise such objections as he deems fit and proper before the Commissioner and the Commissioner shall take note of the same before submitting his report to the trial Court. The Commissioner shall inspect the suit property after giving notice to parties to the suit and it is open to the revision petitioner/first defendant to raise such objections as he deems fit and proper before the Commissioner and the Commissioner shall take note of the same before submitting his report to the trial Court. It is open to the parties to submit necessary documents such as sale deed etc. to the Advocate Commissioner to substantiate their claims. The trial Court shall provide opportunity to the revision petitioner/first defendant to file his objections to the Commissioners report and to proceed further in the matter in issue. Consequently, connected miscellaneous petition is closed.