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2009 DIGILAW 241 (MAD)

Anna Sudha Devi v. P. George Samuel

2009-01-21

N.PAUL VASANTHAKUMAR

body2009
ORDER In C.R.P. PD (MD) No. 1417 of 2008: This Civil Revision Petition has been filed under Article 227 of the Constitution of India challenging the order made in I.A. No. 76 of 2005 in O.S. No. 25 of 2003 on the file of the Principal Subordinate Judge, Nagercoil, dated 13.2.2004. 2. It is seen from the records that an advocate Commissioner was appointed and a report was filed and the said report was not set aside in the order dated 13.12.2004 made in I.A. No.76 of 2005. The Court below ordered as follows: "Heard both sides. Whether the report of the Commissioner is required to be set aside? is to be considered after the examination of Commissioner to find out the present structure of the suit property by consent of both the counsels. Advocate T. Arthur is appointed and the Commissioner fee is fixed at Rs. 1,000/- (Fee to be born by both parties equally) Commissioner report with plan as it is required by both parties". 3. The said order of the Court below appointing the second Advocate Commissioner without setting aside the report of the 1st Advocate Commissioner is challenged on the ground that; it is in violation of Order 26 Rules 11 and 12 C.P.C. 4. Learned counsel for the petitioner submits that similar issue was considered by this Court in a decision (2006) 1 MLJ 580 and by a Division Bench of the Kerala High Court AIR 1985 Ker. 83 and contended that without setting aside the report of the 1st Advocate Commissioner, no second advocate Commissioner can be appointed for the very same purpose. 5. Learned counsel for the respondent submits that it is true that without setting aside the report of the 1st Advocate Commissioner, no second Advocate Commissioner can be appointed for the same issue and a direction may be given to the Court below to pass orders in the Interlocutory Application with regard to the report of the 1st advocate Commissioner viz., in I.A. No. 76 of 2005 in a given time. 6. From the perusal of the order dated 13.12,2004, it is evident that the report filed by the earlier Advocate Commissioner was not set aside and the Court itself felt that it can be considered after the examination of the Commissioner to find out the present status of the suit property. 6. From the perusal of the order dated 13.12,2004, it is evident that the report filed by the earlier Advocate Commissioner was not set aside and the Court itself felt that it can be considered after the examination of the Commissioner to find out the present status of the suit property. Thus, appointing second Advocate Commissioner before recording dissatisfaction of the report submitted, is definitely in violation of Order 26 Rules 10(3) and 12C.P.C. and the Court has no jurisdiction to appoint a second Commissioner before setting aside the report already submitted. Similar issue is already decided by this Court in the decision R. Sivasubramaniam v. Balamurugan (supra) wherein the learned Judge followed earlier judgments (1988) 2 LW 440 : (1989) 1 MLJ 197 and (1985) 1 MLJ 254 and held that merely because objections were filed by the respondent to the earlier report, the trial Court cannot appoint a second Commissioner, unless it renders a finding that the earlier Commissioner's report is unsatisfactory. The same is the view taken by the Division Bench of the Kerala High Court in the decision Swami Premananda Bharathi v. Swami Yogananda Bharathi and Another (supra). "8. We shall consider as to whether the appointment of a second commissioner without setting aside the report and proceedings of the first commissioner is a jurisdictional error. In this connection we may refer usefully the decisions of the Madras and Travancore High Courts. In the decision. AIR 1922 Mad 219, the Court deprecated or condemned the practice of appointing successive Commissioners. The aforesaid decision was followed and the principle again reiterated in AIR 1929 Mad 661 and AIR 193l Mad 73 : (1931) 1 MLJ 450. The Courts have held that a specific order superseding the first order is imperative and a choice of one of the commissioner's report from successive reports, is wrong (vide 2 TLT (1viii) - S.A. No. 114 of 1102) and AIR 1931 Mad 73. We are aware of a different note on this aspect of the matter struck by the Division Bench of the Patna High Court in the decision Shib Charan Sahu v.Sarda Prasad, AIR 1972 P&H 265 . We are aware of a different note on this aspect of the matter struck by the Division Bench of the Patna High Court in the decision Shib Charan Sahu v.Sarda Prasad, AIR 1972 P&H 265 . The Patna decision was referred to with approval by VELU PILLAI, J. in (1964) Ker LT concur with the decisions of the Madras High Court and Travancore High Court and the decisions of the Kerala High Court AIR 1984 NOC 197 : (1974) Ker LT (SN) 22 and (1983) Ker LT 258, referred to hereinabove and also in Para 6 supra and do not find our way to agree with the decisions to the contrary as laying down the law on the point correctly. Time and again, the Courts have condemned or deprecated the tendency of the subordinate Courts in the appointment of a second commissioner before superseding the first commissioner's report and proceedings That the first commissioner's report and. proceedings should be set aside for reasons to be recorded and then only the Court can proceed to appoint another commissioner to do the work is a wholesome rule of law based on public policy. The proceedings in the Court below could be expedited, without waste of time and money. We are of the view, that only if the Court has reason to be dissatisfied with the proceedings and report of the first commissioner for reasons stated, it can appoint a second commissioner for further inquiry. This is a condition precedent". 7. Following the said judgments, the order passed by the Court below dated 13.12.2004 made in I.A. No. 76 of 2005 is set aside and the same is directed to be disposed of by the Court-below within a period of two months from the date of receipt of copy of this order. C.R.P. PD (MD)No. 518 of 2006 8. In view of the order, passed in C.R.P.PD (MD) No. 1417 of 2008 by setting aside the order in I.A.No. 76 of 2005 in G.S.No.25 of 2003, the order passed in I.A.No.75 of 2005 in the same suit which is the subject matter of the above Civil Revision Petition is also liable to be set aside and accordingly, the same is set aside. 9. 9. It is made clear that the Court below is bound to consider the report of the earlier Advocate Commissioner and to see whether the same is liable to be set aside. Only if the said report is set aside, necessity will arise to appoint a fresh Advocate Commissioner. 10. In the result, the Civil Revision Petitions are allowed. No costs. Consequently, M.P. (MD) No. 1 of 2006 is closed. Petitions allowed.