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2013 DIGILAW 460 (MAD)

Satheesh v. Thankaraj

2013-01-21

G.RAJASURIA

body2013
Judgment :- 1. This Civil Revision Petition has been filed to get set aside the order dated 10.08.2010 passed in I.A.No.680 of 2010 in O.S.No.313 of 2003, by the learned Principal District Munsif Court, Padmanabhapuram. 2. Heard both sides. 3. A recapitulation and re'sume' of facts absolutely necessary and germane for the disposal of this Civil Revision Petition, would run thus: (i) The learned Counsel for the revision petitioners, by inviting the attention of this Court to the grounds of this revision petition and also the relevant typed set of papers, would pyramid his arguments thus: At the first instance, an Advocate Commissioner was appointed, who visited the suit property in the absence of the defendants/revision petitioners and also without the assistance of a Surveyor. Whereupon, the defendants agitated and approached this Court and this Court set aside the order passed by the lower Court and gave a direction to the lower Court to appoint an Advocate Commissioner to visit the suit property and measure the same as per law. Thereafter, the same Advocate Commissioner visited the suit property with the assistance of a private Surveyor and submitted his report. However between the earlier report and the subsequent report, there are variations in measurement that could be noted and all these occurred because the Advocate Commissioner failed to take the assistance of a Government Surveyor. As such, the learned Counsel for the revision petitioners would pray for setting aside the order of the lower Court and also the second report of the Advocate Commissioner and seeking re-issuance of Advocate Commissioner's warrant with proper directions. (ii) Whereas the learned Counsel for the respondent/plaintiff, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioner/ defendants, would advance his arguments, which could pithily and precisely be set out thus: The lower Court appropriately and appositely, correctly and legally appointed for the second time the Advocate Commissioner to measure the suit property. There is no embargo for the Advocate Commissioner to take the assistance of a private Surveyor; insisting for taking the assistance of the Government Surveyor, who are burdened with Government work, would delay the litigative process. Over and above that, the revision petitioners have not pointed out in what manner the lower Court committed any mistake or the Advocate Commissioner Commissioner committed any mistake. Over and above that, the revision petitioners have not pointed out in what manner the lower Court committed any mistake or the Advocate Commissioner Commissioner committed any mistake. As per him, no interference is warranted in this Civil Revision Petition. 4. The point for consideration is as to whether the order of the lower Court is fraught with any illegality or perversity? The Point: 5. A mere running of the eye over the earlier Commissioner's report, which was set aside and the subsequent report would demonstrate and display that in the subsequent report one could see that there are variations in measurement from with that of the earlier report. The assistance of a Government Surveyor was not taken. However, when this Court raised certain queries as to whether the extent of the property of the plaintiff does tally with the extent as found in the Advocate Commissioner's report and sketch, the learned Counsel for the respondent could not give any precise answer and according to him, it requires deep analysis. 6. The learned Counsel for the revision petitioners would submit that there is no clarity in the Advocate Commissioner's report at all. Trite, the proposition of law is that a litigant cannot go on asking for re-appointment of Advocate Commissioner till the Advocate Commissioner gives a favourable report in favour of the party concerned. The lower Court simply observed that if any further direction is given to the Advocate Commissioner or a fresh Advocate Commissioner is appointed, that would further delay the litigative process. 7. Wherefore, I would like to point out that the lower Court could very well examine the Advocate Commissioner as a Court witness and give opportunity to both sides to elicit from him the relevant facts. On considering those facts, the lower Court shall have discretion to pass suitable orders either dismissing the I.A. or giving a further direction to the Advocate Commissioner to visit the suit property with the help of a Government Surveyor and measure the same by referring to the survey maps and the documents concerned and note down the physical features also and submit his report along with a sketch. 8. Accordingly, I am of the considered view that the matter is to be remitted back to the trial Court for examining the Advocate Commissioner as Court witness and give liberty to both parties to elicit from him the relevant facts. 8. Accordingly, I am of the considered view that the matter is to be remitted back to the trial Court for examining the Advocate Commissioner as Court witness and give liberty to both parties to elicit from him the relevant facts. After considering all the facts and circumstances of the case, the trial Court shall do well to see that the I.A.680 of 2010 is disposed of afresh within a period of one month thereafter. The point is answered accordingly. 9. With the above observations, this Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs.