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2013 DIGILAW 1395 (MAD)

R. Palani v. A. P. Gopikrishna

2013-03-21

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioners/Respondents 1, 3 to 12/Defendants 1, 3 to 12 have filed the instant Civil Revision Petition as against the order dated 18.04.2011 in I.A.No.171 of 2011 in O.S.No.23 of 2010 passed by the Learned District Munsif, Pallipattu. 2. The Learned District Munsif, while passing the impugned order in I.A.No.171 of 2011 in O.S.No.23 of 2010 on 18.04.2011 [filed by the Respondent/Plaintiff as Petitioner under Order 26 Rule 9 of C.P.C. praying for appointment of Advocate/Commissioner to note the physical features of the suit properties along with Taluk Surveyor at Pallipattu Taluk and to file report with plan], has observed the following: "Heard. Document perused. Advocate Mr. N.G. Anbalagan is appointed as Commissioner for the purpose mentioned in the petition his remuneration is fixed by Rs.2,000/- to be paid by the petitioner directly. The Commissioner is directed to Inspect the suit property with help of the Taluk Surveyor after giving the notice to parties. The Report with Sketch by 22.06.2011." 3. The Learned Counsel for the Petitioner/Respondents 1, 3 to 12 contends that the impugned order passed by the trial Court in I.A.No.171 of 2011 in O.S.No.23 of 2010 dated 18.04.2011 is a cryptic order and further that it is bereft of quantitative and qualitative details. Also, in the said order passed by the trial Court, there is no outline of process of reasoning, after traversing upon the contents of affidavit in I.A.No.171 of 2011 filed by the Respondent/Plaintiff and also the salient features of the counter filed by the Revision Petitioners/ Respondents 1, 3 to 12. 4. At this stage, the Learned Counsel for the Petitioners brings it to the notice of this Court that the trial Court on 18.04.2011 in I.A.No.171 of 2011 in O.S.No.23 of 2010 Notes Paper, has stated the following: "Clarification Heard. Counter filed by respondent's side counsel petition allowed. MR.N.G.A. Advocate appointed as court commissioner with help the Taluk Surveyor measure the suit properties with S.No.47/1, S.No.48, S.No.49/2, S.No.53/2B1 and 53/2B2 (S.F.No.50 Extent 2.93 Hec. Situated in patta No.265) with the help of the Revenue records and file his report with sketch. His remuneration is fixed Rs.2000/-paid the petitioner directly on or before 22.06.2001 Report with plan by then." 5. Situated in patta No.265) with the help of the Revenue records and file his report with sketch. His remuneration is fixed Rs.2000/-paid the petitioner directly on or before 22.06.2001 Report with plan by then." 5. The Learned Counsel for the Petitioners invites the attention of this Court that in the order dated 18.04.2011 in I.A.No.171 of 2011 in O.S.No.23 of 2010 [mentioned in the Notes Paper of the said I.A.], the trial Court has referred to the S.No.47/1, S.No.48, S.No.49/2, S.Nos.53/2B1 and 53/2B2 etc. and in fact, the relevant portion of the order seen in the Notes Paper in I.A.No.171 of 2011, '... Counter filed by respondent's side counsel petition allowed. MR.N.G.A. Advocate appointed as court commissioner with help the Taluk Surveyor measure the suit properties with S.No.47/1, S.No.48, S.No.49/2, S.No.53/2B1 and 53/2B2 (S.F.No.50 Extent 2.93 Hec. situated in patta No.265) with the help of the Revenue records and file his report with sketch'. But these survey numbers mentioned in the Notes Paper order in I.A.No.171 of 2011 dated 18.04.2011, unfortunately, do not find a place in the impugned order dated 18.04.2011 in I.A.No.171 of 2011 in O.S.No.23 of 2010 [as seen from page No.25 of the typed set of papers filed before this Court]. 6. It is to be pointed out that the Respondent/Plaintiff as Petitioner in I.A.No.171 of 2011 has, inter alia, averred that the Respondents (Revision Petitioners) are not in possession and enjoyment of the suit properties and that the suit properties are clubbed with S.No.47/1, S.No.48, S.No.49/2, S.Nos.53/2B1 and 53/ 2B2 in Veeranathur Village at Pallipattu Taluk and the suit properties are clubbed together and no ridge is in existence. Also, it is mentioned that if an Advocate Commissioner is appointed, it will be identified by the Commissioner and it will easily proved that the Respondents (Revision Petitioners) are not in possession of the suit properties. Therefore, the appointment of Advocate Commissioner has been sought along with Surveyor to note down the physical features of the suit properties along with Taluk Surveyor at Pallipattu Taluk by the Respondent/Plaintiff (Petitioner in I.A.). 7. Therefore, the appointment of Advocate Commissioner has been sought along with Surveyor to note down the physical features of the suit properties along with Taluk Surveyor at Pallipattu Taluk by the Respondent/Plaintiff (Petitioner in I.A.). 7. A detailed Counter to I.A.No.171 of 2011 has been filed by the 1st Revision Petitioner (1st Respondent) and adopted by Revision Petitioners 3 to 7 (Respondents 3 to 7), in and by which, it is mentioned that 'the application praying for appointment of Commissioner is not at all admissible in law and an Advocate Commissioner is not at all competent person to identify as to who is in possession of the property. 8. It is not in dispute that the Respondent/Plaintiff has filed the main suit in O.S.No.23 of 2010 on the file of the trial Court seeking the relief of permanent injunction restraining the Defendants (Revision Petitioners) from alienating the suit property to third parties in any manner till the disposal of the suit. 9. A detailed Written Statement has been filed by the 1st Defendant (1st Revision Petitioner) and adopted by other Revision Petitioners (Defendants 3 to 7), inter alia, stating that the Respondent/ Plaintiff is not entitled to the relief of remedy of injunction and that the suit filed by the Respondent/Plaintiff is not at all maintainable without a plea for declaration of title over the suit property and further that the Revision Petitioners/Defendants are the absolute owners, who are in possession and enjoyment of the property when anybody's hindrance etc. 10. Furthermore, it is also pleaded that all revenue records stand in the name of Ramaswamy and that patta No.265 stands in his name and he died during the year 2000, leaving behind the Defendants 1 to 7 as his Legal Heirs. More importantly, a stand is taken by the Revision Petitioners in the Written Statement that during the life time of Ramaswamy, he has enjoyed the property, after paying necessary revenue charges. 11. It is to be noted that a Court of Law is not to appoint a local commission for collection of evidence in favour of a litigant. Moreover, to ascertain whether a Plaintiff/Defendant is in possession of property, a Court of Law cannot appoint a Commissioner. 12. 11. It is to be noted that a Court of Law is not to appoint a local commission for collection of evidence in favour of a litigant. Moreover, to ascertain whether a Plaintiff/Defendant is in possession of property, a Court of Law cannot appoint a Commissioner. 12. Also, where in a suit for possession, the aim of appointment of an Advocate Commissioner was meant to gather evidence, then, the Application/Petition praying for appointment of an Advocate Commissioner is not maintainable. 13. Be that as it may, this Court, on going through the impugned order dated 18.04.2011 in I.A.No.171 of 2011 in O.S.No.23 of 2010 passed by the trial Court, is of the considered view that the same is a non-speaking order, bereft of quantitative and qualitative details in regard to the pleadings of the parties set out in the Petition Affidavit and Counter. In short, there is no outline of process of reasoning. An order may be just from the point of view of a person in whose favour the order has been passed by the concerned Court of Law. But if the said order is an unjust one and the same does not confirm to establish the principles of law and procedure to be followed by the concerned Court, then, the same suffers from latent and patent infirmities and illegalities, in the eye of law, as opined by this Court. On the simple ground alone, this Court, without going into the merits of the matter and not traversing upon the merits and demerits of the pleadings set out by the parties in the Plaint, Written Statement, Affidavit in I.A. and the Counter Affidavit etc. in the interest of justice, sets aside the order passed by the trial Court in I.A.No.171 of 2011 in O.S.No.23 of 2010 dated 18.04.2011 and allows the Civil Revision Petition to prevent an aberration of justice. 14. In the result, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A.No.171 of 2011 in O.S.No.23 of 2010 dated 18.04.2011 is hereby set aside by this Court for the reasons assigned in this Revision. 14. In the result, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A.No.171 of 2011 in O.S.No.23 of 2010 dated 18.04.2011 is hereby set aside by this Court for the reasons assigned in this Revision. The trial Court is directed to take up the I.A.No.171 of 2011 on its file afresh and to pass orders on merits, of course after hearing the contentions of both parties and to pass a final, reasoned order based on outline of process of reasoning within a period of two weeks from the date of receipt of copy of this order, so that it will enable the higher forum to consider the benefit of the order passed by it in the manner known to law and in accordance with law. Liberty is granted to the respective parties to raise all factual and legal pleas [including the maintainability of I.A.No.171 of 2011 filed by the Respondent/Plaintiff praying for appointment of an Advocate Commissioner in a suit for injunction]. The trial Court is to pass a fresh order in I.A.No.171 of 2011 untrammelled with any of the observations made by this Court in this Revision and in a dispassionate manner. No costs. Consequently, connected Miscellaneous Petition is closed.