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2013 DIGILAW 1879 (MAD)

R. Rajasekar v. D. Gurumurthy

2013-06-03

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioner/1st Defendant has focused the instant Civil Revision Petition as against the Order dated 30.04.2010 in I.A.No.12966 of 2009 in O.S.No.2693 of 2006 passed by the Learned XI Assistant Judge, City Civil Court, Chennai. 2. The Learned XI Assistant Judge, City Civil Court, Chennai, while passing the impugned order in I.A.No.12966 of 2009 in O.S.No.2693 of 2006 on 30.04.2010, has categorically observed that 'the Respondent/Petitioner/Plaintiff has already filed Interlocutory Application praying for appointment of an Advocate Commissioner and the same has been dismissed but, after filing of the said Application, the Respondent has been examined as DW1 (in the main suit), who deposed in his evidence that in the suit property, some constructions have been made and further that, in the centre of the suit property, a wall has been raised to an extent of 5 feet, which has been admitted and this fact is a subsequent development after filing of I.A.No.4973 of 2007. Moreover, it is also contended on behalf of the Respondent/Petitioner/Plaintiff (before the trial Court) that the aforesaid evidence of DW1 in regard to the constructions made in the suit property, including the admission made by him that in the centre of the suit property, at a height of 5 feet, a wall has been raised, has given a cause of action for appointment of an Advocate Commissioner etc.,' and resultantly, it is held by the trial Court that 'if an Advocate Commissioner is appointed, it will reduce much of oral and documentary evidence and by so appointing an Advocate Commissioner, no prejudice will be caused to the Respondent's side' and consequently, allowed the Application by appointing an Advocate Commissioner Selvi G.Lavanya and fixing her remuneration of Rs.7,000/-. 3. Added further, the Learned Advocate Commissioner has been directed by the trial Court to issue notice to both sides and to note down the physical features of the suit property and to file her report together with Plan and posted the case to 10.06.2010. 4. 3. Added further, the Learned Advocate Commissioner has been directed by the trial Court to issue notice to both sides and to note down the physical features of the suit property and to file her report together with Plan and posted the case to 10.06.2010. 4. Assailing the correctness of the order dated 30.04.2010 in allowing I.A.No.12966 of 2009 in O.S.No.2693 of 2006 passed by the Learned XI Assistant Judge, City Civil Court, Chennai, the Civil Revision Petitioner/1st Defendant has preferred the instant Civil Revision Petition contending that the Order of the trial Court in allowing I.A.No.12966 of 2009 in O.S.No.2693 of 2006, dated 30.04.2010 (filed by the Respondent/Petitioner/Plaintiff) is against Law and also, in negation of the principles of natural Justice. 5. The Learned Counsel for the Petitioner/1st Defendant urges before this Court that the trial Court has failed to appreciate a rudimentary fact that on earlier occasion, I.A.No.4973 of 2007 has been filed by the Respondent/Plaintiff (as Petitioner) praying for appointment of an Advocate Commissioner for the same purpose of noting down the physical features of the private passage and the said Application has been dismissed on 02.07.2007. As such, the second I.A.No.12966 of 2009 (filed by the Respondent/Petitioner) is not per se maintainable in Law because of the simple reason when the existence of wall is very much admitted, there is no necessity or any need to appoint an Advocate Commissioner. 6. The Learned Counsel for the Petitioner/1st Defendant brings it to the notice of this Court that after dismissal of I.A.No.4973 of 2007 on 02.07.2007 by the trial Court, the Respondent/Plaintiff has taken out an Application for summoning the Tahsildar to adduce evidence and the same has been allowed. However, the Respondent/Plaintiff has failed and neglected to file batta for summoning the Tahsildar. Therefore, the Respondent/Plaintiff has been perforced to file the present I.A.No.12966 of 2009 praying for appointment of an Advocate Commissioner for the same purpose of noting down the physical features of the private passage and obtained an order of appointing an Advocate Commissioner, which cannot be countenanced in any manner in the eye of Law. 7. Therefore, the Respondent/Plaintiff has been perforced to file the present I.A.No.12966 of 2009 praying for appointment of an Advocate Commissioner for the same purpose of noting down the physical features of the private passage and obtained an order of appointing an Advocate Commissioner, which cannot be countenanced in any manner in the eye of Law. 7. At this juncture, a perusal of the Plaint in O.S.No.2693 of 2006 (filed by the Respondent/Plaintiff) shows that a declaratory relief to the extent that the 1st Defendant (Civil Revision Petitioner) his men, agents, representatives, legal representatives, assignees or any person claiming, acting for on behalf of him, has no personal right or interest over the common passage of 3 ½ sq.ft in the schedule property, has been sought for. Also, a relief of permanent injunction restraining the Revision Petitioner/1st Defendant (his men, agents, etc.,) from doing any kind of constructions in the 3 ½ sq.ft common passage more fully mentioned in the schedule property is prayed for. That apart, a relief of mandatory injunction has been prayed for by the Respondent/Plaintiff before the trial Court, seeking for issuance of a mandatory injunction in directing the 2nd Defendant to demolish the unlawful construction of wall put up by the Petitioner in the 3 ½ sq.ft common passage more fully described in the Plaint schedule. 8. It is to be noted that the 2nd Defendant/Commissioner of Corporation, Chennai, is not a party to I.A.No.12966 of 2009 in O.S.No.2693 of 2006 (filed by the Respondent/Plaintiff). 9. It transpires that the Revision Petitioner/1st Defendant has filed a detailed Written Statement inter alia stating that the Respondent/Plaintiff has filed the present suit only for the purpose of harassing the Revision Petitioner/1st Defendant and to establish his so called right to get light and air through his encroached Northern wall and with a view to prevent the Revision Petitioner/1st Defendant for filing a suit for mandatory injunction. In short, a specific plea is taken on behalf of the Revision Petitioner/1st Defendant that the suit as framed is not maintainable in law and on facts. 10. Moreover, the Revision Petitioner/1st Defendant has also averred in Paragraph 8 in his Written statement that the Respondent/Plaintiff having admitted the existence of 3 ½ sq.ft. In short, a specific plea is taken on behalf of the Revision Petitioner/1st Defendant that the suit as framed is not maintainable in law and on facts. 10. Moreover, the Revision Petitioner/1st Defendant has also averred in Paragraph 8 in his Written statement that the Respondent/Plaintiff having admitted the existence of 3 ½ sq.ft. high wall blocking the passage has come forward to file the present suit for mandatory injunction as if the Revision Petitioner/1st Defendant is going to put up constructions on the passage. Also, it is averred by the Revision Petitioner/1st Defendant that he has not decided to put up any construction on the passage as it is left for free flow of light and air to his house etc., 11. For a fuller and better appreciation of the crux of the matter in question, it is useful for this Court to pertinently point out that the Respondent/Plaintiff as Petitioner on earlier occasion projected I.A.No.4973 of 2007 in O.S.No.2693 of 2006 on the file of the trial Court, praying for appointment of an Advocate Commissioner to inspect the suit property and to file a report. The said Interlocutory Application has been contested by the respective Plaintiff and the 1st Defendant and on 02.07.2007, the trial Court in Paragraph 4 has observed the following: “4. The existence of the wall has been admitted and therefore, there is no need to appoint a Commissioner to go and verify this fact. It is for the Petitioner to prove whether the passage is a common passage or not and for this purpose, the appointment of Commissioner is not warranted. The petition is dismissed.” And consequently, dismissed the said Application. 12. As against the order of dismissal of I.A.No.4973 of 2007 in O.S.No.2693 of 2006 dated 02.07.2007 (filed by the Respondent/Plaintiff), no further proceedings have been initiated or launched by the Respondent/Plaintiff (as an affected party), the said order of dismissal passed by the trial Court in I.A.No.4973 of 2007 in O.S.No.2693 of 2006, dated 02.07.2007, has become final and conclusive and binding between the inter se parties as per Section 43 of the Indian Evidence Act, 1872. 13. 13. Be that as it may, a cursory perusal of the contents of the counter filed by the Revision Petitioner/1st Defendant in I.A.No.12966 of 2009 in O.S.No.2693 of 2006 on the file of the trial Court unerringly point out that it has been brought to the notice of the trial Court that the Respondent/Plaintiff has already filed I.A.No.4973 of 2007 for appointment of an Advocate Commissioner and the same has been dismissed on 02.07.2007. As against the said order of dismissal in I.A.No.4973 of 2007 in O.S.No.2693 of 2006, no Revision has been filed. When that being the factual position, this Court is not in a position to comprehend as to why the Respondent/Plaintiff as Petitioner has come out with a second Application in I.A.No.12966 of 2009, praying for appointment of an Advocate Commissioner to inspect the 3 ½ sq.ft. common passage leading East to West on the Northern side situated to the property bearing New No.44, Old No.135/2, Bajanai Koil Street, Olcottkuppam, Beasant Nagar, Chennai-600 090 and measure and note down the physical features and construction put up in the said passage in the pending suit. 14. The factual scenario of the stage of the main suit is that DW1 has been recalled for the purpose of cross examination by filing a Recall Petition and the same has been allowed and only at that point of time, the Respondent/Plaintiff has filed the second Application in I.A.No.12966 of 2009, praying for appointment of an Advocate Commissioner. 15. On going through the impugned order in I.A.No.12966 of 2009 in O.S.No.2693 of 2006, dated 30.04.2010, passed by the trial Court, it is latently and patently clear that the trial Court has categorically observed that the Revision Petitioner/1st Defendant has been examined as PW1 and in the course of his evidence, he has admitted to put up constructions in the suit property and further, in the centre of the property, he has raised a wall at a height of 5 feet, which is admittedly a subsequent development and in the Written Statement filed already, it is contended on behalf of the Respondent/Plaintiff that in his property alone, building has been constructed and there is no such encroachment made etc., 16. The Learned Counsel for the Respondent/Plaintiff (Petitioner in I.A.No.12966 of 2009) brings it to the notice of this Court that DW1 in his cross examination on 24.04.2009 before the trial Court has tacitly admitted that on the opposite of Western side of his house, there is a common latrine and also that, from his brother's portion from the Eastern side through the vacant space, if one proceeds to West, till the centre of the wall, there is no construction and in the vacant space open to the sky, there is no construction and if an Advocate Commissioner is appointed through Court and if he inspects the property that it is true, the fact will come to light etc., 17. Continuing further, DW1 (1st Defendant) in his cross examination has also added that he has constructed the house in the year 2006 for which he has not obtained any permission/sanction and the same is not required for Kuppam etc., 18. The position of Law in respect of an appointment of an Advocate Commissioner under Order 26 Rule 9 of the Code of Civil Procedure is that the aim and purport of ingredients of Order 26 Rule 9 are not to help a party to gather/collect evidence, where the party can procure or get the evidence itself either at his part or otherwise. An appointment of an Advocate Commissioner cannot be made by a Court of Law merely on the basis of asking or as a matter of routine. Further, a party is not supposed to indulge in any fishing expedition or a roving enquiry with a view to prove his or her claim in a given proceeding/suit. 19. It is to be borne in mind that projecting a fresh petition/ application praying for appointment of an Advocate Commissioner within a short time or at a later point of time cannot be entertained by a Court of Law based on the facts and circumstances of a given case. Also that, a report of an Advocate Commissioner cannot form the essential basis of an order/Judgment. Furthermore, a Court of Law cannot delegate its judicial functions to an Advocate Commissioner. 20. Also that, a report of an Advocate Commissioner cannot form the essential basis of an order/Judgment. Furthermore, a Court of Law cannot delegate its judicial functions to an Advocate Commissioner. 20. As far as the present case is concerned, the trial Court has already on earlier occasion on 02.07.2007 dismissed I.A.No.4973 of 2007 praying for appointment of an Advocate Commissioner (filed by the Respondent/Plaintiff) to note down the physical features of the suit property and to file a report. At the risk of repetition, this Court points out that the said order has become final, conclusive and binding on all parties. Certainly, the order of dismissal in I.A.No.4973 of 2007 in O.S.No.2693 of 2006, dated 02.07.2007, operates as a complete fetter on the Respondent/Plaintiff to project another application viz., I.A.No.12966 of 2009 praying for appointment of an Advocate Commissioner by the Respondent/Plaintiff for the second time to inspect the suit property and to file his report. At this stage, this Court is of the view that the second I.A.No.12966 of 2009 filed by the Respondent/Plaintiff as Petitioner is per se not maintainable in Law. 21. Notwithstanding the above factual position, the appointment of an Advocate Commissioner is purely within the discretion of the Court and it is true that a Court of Law can exercise the said power at any stage of the proceedings of the case for the purpose of elucidating any matter in issue. But, that kind of discretion will have to be exercised by a Court of Law with care and circumspection. In the instant case, the evidence of the 1st Defendant as DW1 is that he has made/put up constructions in the suit property and also, he has raised a wall to an extent of 5 feet in the centre of the property. Even though the said evidence of DW1 is said to be a subsequent development, that kind of evidence, in the considered opinion of this Court, will not provide any lever or premium to the Respondent/Plaintiff to project second Application in I.A.No.12966 of 2007 in O.S.No.2693 of 2006 praying for appointment of an Advocate Commissioner for the same purpose to which a similar relief has been asked for earlier and turned down in I.A.No.4973 of 2007 in O.S.No.2693 of 2006 on 02.07.2007. 22. 22. One cannot brush aside/ignore a vital fact that as per Section 17 of the Indian Evidence Act, 1872, the admission of a litigant/party during his examination either in Chief or Cross can either be formal or informal. No wonder, formal admissions are made during the course of trial and it may be of numerous kinds. If a party/litigant during the course of his evidence (in cross examination) accepts any fact/ statement then, it becomes a substantive piece of material evidence of fact admitted therein by means of Sections 17 and 21 of the Indian Evidence Act. In view of the fact that DW1 (1st Defendant) has admitted in his evidence that he has put up constructions and also, in the centre of the suit property, he has raised a wall to an extent of 5 feet, even though the said fact/deposition is a subsequent development, the same can be taken advantage of by any of the parties to the litigant only during the course of the main trial of the suit and such kind of admissions either based on fact or otherwise and taken note of by the trial Court at the time of hearing of the main case during the arguments. Before that, merely because, an admission has been made by DW1 (Revision Petitioner/DW1) it cannot enable the Respondent/Plaintiff to file second Application in I.A.No.12966 of 2009 in O.S.No.2693 of 2006 on the file of the trial Court for the very same purpose. As such, this Court is of the clear cut opinion that the said second I.A.No.12966 of 2009 is nothing but, a surplusage, supernumerary, redundant and otiose one and moreover, when the main suit in O.S.No.2693 of 2006 is already in part heard stage and the Revision Petitioner/1st Defendant as DW1 is very much recalled and his examination is yet to be completed in full in all respects, this Court is also equally of the opinion that the filing of the second Interlocutory Application is nothing but an abuse of process of Law. 23. Yet another fact is to be made mention of in the present case that the Officer, who passed an earlier order in I.A.No.4973 of 2007 in O.S.No.2693 of 2009, dated 02.07.2007, is a different one than the present Officer, who passed the order in I.A.No.12966 of 2009 in O.S.No.2693 of 2006 dated 30.04.2010. 24. 23. Yet another fact is to be made mention of in the present case that the Officer, who passed an earlier order in I.A.No.4973 of 2007 in O.S.No.2693 of 2009, dated 02.07.2007, is a different one than the present Officer, who passed the order in I.A.No.12966 of 2009 in O.S.No.2693 of 2006 dated 30.04.2010. 24. On a careful consideration of respective contentions and in view of the forgoing detailed qualitative and quantitative discussions mentioned supra, this Court comes to an inescapable conclusion that the order passed by the trial Court in I.A.No.12966 of 2009 in O.S.No.2693 of 2006, dated 30.04.2010, allowing the second Application praying for appointment of an Advocate Commissioner by the Respondent/Plaintiff, is not sustainable in the eye of Law. As such, this Court holds that the trial Court has committed an error of jurisdiction in allowing I.A.No.12966 of 2009 in O.S.No.2693 of 2006, dated 30.04.2010, praying for appointment of an Advocate Commissioner for the same purpose, for which an earlier Application filed by the Respondent/Plaintiff viz., I.A.No.4973 of 2007 has been dismissed as early as on 02.07.2007. Consequently, the Civil Revision Petition succeeds. 25. In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. The Order passed by the trial Court in I.A.No.12966 of 2009 in O.S.No.2693 of 2006, dated 30.04.2010 (praying for appointment of an Advocate Commissioner to inspect the suit property and to file the report etc.,) is hereby set aside by this Court for the reasons assigned in this Revision. 26. Since the suit is of the year 2006, a nearly seven years have been elapsed, this Court, on the basis of Equity, Fair Play and Good Conscience, directs the trial Court to take up the main suit in O.S.No.2693 of 2006, which is in Part Heard stage and to dispose of the main case, within a period of four months from the date of receipt of a copy of this order. The parties are directed to lend their unstinted co-operation and assistance in regard to the completion of the proceedings before the trial Court, within the prescribed time limit. It is open to the parties to raise all factual and legal pleas before the trial Court during the trial of the main case and to make use of the evidence adduced by the parties to the best advantage possible. It is open to the parties to raise all factual and legal pleas before the trial Court during the trial of the main case and to make use of the evidence adduced by the parties to the best advantage possible. The trial Court shall also provide adequate opportunities to the respective parties before making an earnest effort to dispose of the main suit within the time framed by this Court and to report compliance to this Court without fail. Consequently, the connected M.P.No.1 of 2010 is closed.