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2009 DIGILAW 5480 (MAD)

A. Govindaraj v. Vedhapadasalai

2009-12-10

M.VENUGOPAL

body2009
Judgment The petitioner/appellant/defendant has filed this Civil Revision Petition as against the order dated 31.08.2009 in I.A.No.37 of 2009 in A.S.No.57 of 2008 passed by the learned Subordinate Court, Nagapattinam in dismissing the application filed by the Revision petitioner under Order 26 Rule 9 of the Civil Procedure Code praying for an appointment of an Advocate Commissioner along with a Surveyor to find out whether Survey No.201/11B is situated within the four boundaries mentioned in the suit property. 2. To avoid an avoidable delay the issuance of notice to the respondent is dispensed with in the interest of justice. 3. The first Appellate Authority while passing the impugned order in I.A.No.37 of 2009 on 31.08.2009 has interalia come to the conclusion that even in I.A.No.37 of 2009 the Revision petitioner has not situated within the four boundaries given in the description of the suit property and further he has not filed in support of such contentions etc and resultantly dismissed the application without costs. 4. 4. According to the learned counsel for the Revision Petitioner/defendant, the impugned order of the learned Subordinate Judge, Nagapattinam passed in I.A.No.37 of 2009 dated 31.08.2009 suffers from material irregularities and if the same is allowed to stand it will result in miscarriage of justice and also that the trial Court has observed that the Revision Petitioner is to establish that the shop is situated in different Survey Number and it can be discharged only if an advocate commissioner fixes the boundary line and further the first Appellate Authority has also committed an error in interpreting that there is no boundary dispute, whereas the controversy is whether the shop of the petitioner exists within the suit property or not and that apart, earlier no commissioner has been appointed by the trial Court and this aspect of the matter has not been looked into by the trial Court and in any event since the petitioner has disputed the existence of the suit property within the boundaries mentioned in the plaint the first Appellate Authority should have considered this serious anomaly and should have appointed an Advocate Commissioner to resolve the dispute and added further inasmuch as the Revision Petitioner has not raised this defence in written statement, this cannot be a ground for not not acceding to the request of the revision Petitioner in regard to the appointment of an Advocate Commissioner and as a matter of fact in law the revision Petitioner is entitled to raise the said point before the first Appellate Authority and therefore prays for allowing the Civil Revision Petition in the interest of Justice. 5. It is useful to refer to the averments made by the petitioner in I.A.No.37 of 2009 before the first Appellate Authority namely the Subordinate Judge, Nagapattinam wherein the petitioner has among other things averred that the respondent has given the four boundaries to the suit property wrongly and since the respondent/plaintiff has filed a suit against him, these aspects of the matter have come to be known to him only recently and therefore has prayed for the appointment of an Advocate Commissioner with the help of the Surveyor to measure the suit property and to find out whether the Suit Survey Number comes within the ambit of the four boundaries and to submit a report. 6. 6. The respondent/decree holder has filed a counter taking a plea that the revision petitioner in his evidence has not deposed that the suit property is situated in different sub-division and also has not raised any dispute in this regard and therefore, the prayer of the petitioner is the baseless besides not a legal one and without pleading a particular point before the Lower Court, the petitioner cannot raise it an issue and object to it before the first Appellate Authority and hence as prayed for dismissal of the application. 7. Expatiating his submissions, the learned counsel for the revision petitioner/defendant submits that a Court of Law has power even at the appellate stage to appointment of an Advocate Commissioner to solve the identity of the land in dispute at the spot and to lend support to his contention he relies on the decision of the Honourable Supreme Court in SHREEPAT -VS- RAJENDRA PRASAD reported in 2000 /STPL(LE) 28143 SC, wherein it is interalia held that, "It was not proper on the part of the courts below to uphold the decree without getting the identity of the land established by issuing some survey commission. Reliance of the courts below on the oral evidence was also rejected as not sufficient when a serious dispute regarding the identity of the land was raised. Appeal allowed. Matter remanded to the trial Court for fresh disposal." 8. He also seeks in aid of the decision of this Court P.R.CHOCKALINGAM -VS-M.PICHAI AND ANOTHER 2003(2)CTC 321, wherein it is held that in Page 326 – Para17 is as follows: "An analysis of the above judgments would lead to an irresistible conclusion that the appellate Court, while considering the application for appointment of commissioner, should not order the application for the sake of asking. Since the power could be exercised judicially, the proper application of mind to the facts of the case is essential before either ordering or rejecting such application. No hard and fast rule can be laid down that in all cases of application filed for appointment of commissioner, that it should be only heard along with the appeal and the Court should order the appointment of commissioner only in the event it satisfied for such commission during the hearing of the appeal. No hard and fast rule can be laid down that in all cases of application filed for appointment of commissioner, that it should be only heard along with the appeal and the Court should order the appointment of commissioner only in the event it satisfied for such commission during the hearing of the appeal. While the question of identity of the property is pleaded, it would be only poroper for the Court to first collect the materials as to the identity of the property by way of a report from the commissioner to adjudicate the dispute at the time of hearing of the appeal." 9. Admittedly, A.S.No.57 of 2008 projected by the revision petitioner/defendant is pending on the file of learned Subordinate Judge, Nagapattinam. It is a axiomatic fact in law, that an appeal is a continuation of original proceedings in law. At this juncture, this Court pertinently points out that there is no quarrel in regard to the proposition that an Advocate Commissioner can be appointed even at the appellate stage to resolve the identity of the property or the identity of the land in dispute. But the core question that arises for rumination of this Court is whether the Revision Petitioner has projected the I.A.No.37 of 2009 praying for appointment of an Advocate Commissioner etc., with a bonafidely intention and of utmost necessity. 10. On perusal of the plaint filed by the respondent/plaintiff shows that the respondent/plaintiff has sought a relief from the trial Court in directing the Revision Petitioner/defendant to put the property mentioned in the schedule in his possession after dismantling or otherwise removing the existing super structure and to pass a decree for Rs.144/- being the amount due by way of damages for use and occupation etc. 11. The trial Court on an appreciation of oral and documentary evidence and taking note of the attending circumstances of the case and finally passed a Judgment on 30.09.2008 in favour of the respondent/plaintiff. It is not the aim and purport of the ingredients of Order 26 Rule 9 of Civil Procedure Code for a Court to assist a party when a party to gather evidence when he himself can procure or gather the same at the spot itself. In a Civil litigation the respondent/plaintiff is the dominus litus though the same is not an absolute or universal rule. 12. In a Civil litigation the respondent/plaintiff is the dominus litus though the same is not an absolute or universal rule. 12. As far as the present case is concerned, after going through the order passed by the first Appellate Authority in I.A.No.37 of 2009, this Court is of the considered view that the first Appellate Authority has not stated anywhere in the order that the existing oral and documentary evidence available on record are insufficient for it to arrive a conclusion while adjudicating the appeal in issue and it has also observed that the petitioner has projected the I.A.No.37 of 2009 praying for the appointment of an advocate commissioner only seven months later to the filing of this Appeal and taking into consideration of these factors and also bearing in mind an important fact that the petitioner/defendant cannot indulge in a roving enquiry or in a fishing expedition to collect evidence at the appellate stage so as to fill up the lacuna and in any event looking at from any angle this Court comes to the inevitable conclusion that the application in I.A.No.37 of 2009 praying for an appointment of an Advocate Commissioner has been projected not out of necessity but the same is a supernumerary or surplus age one and to put it precisely the same is a redundant one and moreover, it is not the case of the first Appellate Authority while dismissing I.A.No.37 of 2009 that there is doubtful evidence or insufficient evidence available on record and resultantly the Civil Revision Petition is devoid of merits and consequently, the same fails. 13. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed in I.A.No.37 of 2009 in A.S.No.57 of 2008 dated 31.08.2009 passed by the learned Subordinate Judge, Nagapattinam is affirmed by this Court for the reasons assigned in this revision. Consequently, M.P.No.1 of 2009 is closed.