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2013 DIGILAW 544 (MAD)

M. P. Dhinakar v. G. Rajagopal

2013-01-24

G.RAJASURIA

body2013
JUDGMENT 1. Heard both. A summation and summarisation of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus: O.S.No.193 of 2010 was filed seeking the following reliefs: “TAMIL” The matter was contested. In fact, the defendant also filed counter claim. Pendente lite, the I.A.No.637 of 2010 was filed by the defendant seeking appointment of an Advocate Commissioner for measuring the suit property and for other purposes; whereupon, a Commissioner was appointed to visit the suit property, measure the same, note down the physical features and submit a report with sketch; whereupon the Commissioner complied with the warrant and submitted his report, in respect of which objections were filed by the plaintiff, who also filed the I.A.No.1086 of 2011 seeking the following relief: “TAMIL” The matter was resisted. However, the Lower Court passed the order setting aside the earlier report of the Commissioner and reissued the warrant of commission to the same Commissioner to visit the suit property and measure the same and submit his report. Being aggrieved by and dissatisfied with the same, the present Civil Revision Petition has been focussed on various grounds. 2. The learned counsel for the revision petitioner / defendant, would pyramid his arguments which could succinctly and precisely be set out thus: The earlier report of the Commissioner ought not to have been set aside by the Lower Court without even examining the Commissioner and also considering all aspects of the matter. The Court had full authority to collect some more particulars through the same Commissioner by any further directions and thereafter the Court could take a decision, but instead of doing it, the Court wrongly set aside the report of the Commissioner. 3. Whereas, the learned counsel for the respondent / plaintiff would pyramid his arguments by pointing out the Paragraph No.3 of the Commissioner's Report, which is extracted hereunder: “TAMIL” (Underlined by me) 4. As per the Advocate for the plaintiff, the Commissioner was not justified in giving virtually a verdict as though there was encroachment by the plaintiff. Even the Commissioner in Paragraph No.1 of his report, observed the age of the wall and such a finding also was beyond his competence; whereupon the Lower Court simply set aside the order correctly warranting no interference in revision. 5. Even the Commissioner in Paragraph No.1 of his report, observed the age of the wall and such a finding also was beyond his competence; whereupon the Lower Court simply set aside the order correctly warranting no interference in revision. 5. The point for consideration is as to whether the Lower Court was justified in setting aside the earlier report of the Commissioner and ordering the Commissioner to visit the suit property afresh and measure it and submit his report by specifying the physical features. 6. At the outset, I would like to point out that the Paragraph No.3 of the Commissioner's report, which has been extracted above, in my opinion, could have been moulded differently by the Commissioner. The Commissioner is expected to measure the property and observe the same and submit his report. But his observations should not be rendered like a judgment by itself. Here the Commissioner gave a finding that there was encroachment and such a finding could be given only by the Court and not by the Commissioner. As such, that much portion of Paragraph No.3 of the Commissioner's report indicating that there was encroachment, shall stand deleted. Regarding the grievance of the plaintiff that in Paragraph No.1 of the Commissioner's Report there is a finding relating to the age of the wall, I am of the view that it is open for him to cross-examine the Commissioner. 7. Without even examining the Advocate Commissioner, the Lower Court simply scrapped the report which was not correct. Normally whenever any application is filed for scrapping the report of the Commissioner, the Commissioner should be examined as Court witness before the Court and both the sides should be given opportunity to cross-examine him and thereafter the Court should take a decision. But in this case, the Court in its impugned order, while scrapping the earlier Commissioner's Report, stated about the paucity of relevant facts in the Commissioner's Report. The Court at any stage can reissue the warrant of commission and accordingly, the Commissioner has to gather more particulars, with which there could be no quarrel. But in this case, the Court without examining the Commissioner, delved into the facts and simply scrapped his report warranting interference. 8. The Court at any stage can reissue the warrant of commission and accordingly, the Commissioner has to gather more particulars, with which there could be no quarrel. But in this case, the Court without examining the Commissioner, delved into the facts and simply scrapped his report warranting interference. 8. On balance, I would like to modify the order of the Lower Court to the effect that the earlier Commissioner's report shall be taken on file except for the objectionable finding relating to encroachment in Paragraph No.3 of the Commissioner's Report as set out supra. After the Commissioner submitting his supplementary report with the sketch, it is for the Court to take a decision and that too, after examining him as Court witness and giving opportunity to both sides to cross-examine him. 9. With the above observations, the Civil Revision Petition is disposed of. Consequently, the connected miscellaneous petition is closed. No costs.