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2013 DIGILAW 924 (MAD)

S. Karpagam v. Suganthi

2013-02-13

M.VENUGOPAL

body2013
Judgment :- 1. The Revision Petitioner/plaintiff has preferred the instant civil revision petition as against the order dated 22.03.2010 in I.A.No.1928 of 2009 in I.A.No.1514 of 2006 in O.S.No.351 of 2005 passed by the District Munsif, Pollachi. 2. The Learned District Munsif, Pollachi, while passing orders in I.A.No.1928 of 2009, on 22.03.2010, among other things observed that "......Admittedly the counsel's colleague is present during visit of Commissioner. After 2 years, there will be more changes in the physical features. The petition, if filed, to show the altered physical features, can be allowed. But this petition is filed to show that there is no trace of cart track after 2 years, which I am not inclined to allow ...." and resultantly, the petition was dismissed without costs. 3. The Learned counsel for the petitioner/plaintiff urges before this Court that the trial court has committed an error in dismissing the I.A.1928 of 2009 in I.A.No.1514 of 2006 in O.S.No.351 of 2005 on 22.03.2010 by assigning untenable reasons. 4. According to the Learned counsel for the petitioner/plaintiff, the trial court should have seen that the petitioner/plaintiff could not be present in the venue of inspection at the time of Commissioner's visit, as she was residing about 60 kms away from the suit properties, whereas, the respondents/defendants are residing in the very same village about 2 kms away. Therefore, the presence of the junior Advocate of the counsel for the petitioner cannot be considered as an effective representation on her behalf. 5. Lastly, the Learned counsel for the petitioner projects an argument that the petitioner is legally entitled to project a correct picture about the topography of the properties, in order that the Court is able to visualize the correct details. 6. Per contra, the Learned counsel for the respondents/defendants repelling the contentions of the Learned counsel for the petitioner submits that earlier, the Commissioner has inspected the properties on 08.08.2007 as per order in I.A.No.1514 of 2006 and on behalf of the revision petitioner/plaintiff, no objections have been raised or the same being put forward in writing and after a lapse of nearly two years, the petitioner /plaintiff has come out with I.A.No.1928 of 2009, seeking to re-issue the Commissioner's Warrant on the ground that the Learned Commissioner has given a finding that there was no cart track to reach the respondents' land except one shown as Z, Q. R in his report. 7. Furthermore, the Revision Petitioner/plaintiff in I.A.No.1928/2009, in the earlier portion prays for issuance of an order by the trial court to pass an order in directing the same Advocate Commissioner to visit the property in the presence of the parties and to file a report, and in the latter portion, has sought an alternative relief for appointment of a new Commissioner. 8. In law, the report of an Advocate Commissioner cannot ipso facto form a cementing platform for delivering a judgment/passing an order by a competent Court of law in a given case. The report/evidence of Commissioner is not binding on the trial court. After all, the appointment of Advocate Commissioner is to help the Court to evaluate the evidence, let in/to be adduced by both parties or their witnesses in regard to the subject matter of the dispute. A Court of Law cannot delegate its judicial functions to an Advocate Commissioner. Only, when a dissatisfaction is expressed by the trial court with regard to the report of the Commissioner, the appointment of second Commissioner can be visualized in a given situation. 9. It cannot be gain-said that merely because the report of the Advocate Commissioner is accepted during trial of the main case, such report is not binding on the trial court at the time of penultimate decision of the Suit/Appeal as the case may be. At best, the acceptance of Commissioner's report at that stage is construed to be a part of record and in reality, the said report is to be taken into account by a competent court of law in a given case along with other oral and documentary evidence on record at the time of final hearing of the Suit/Appeal as the case may be. 10. It is well established principle of law that an Advocate Commissioner's report is not per se evidence touching upon the matter in issue or elucidating in matters about which the Court of law is resolved. The Commissioner cannot be appointed if the intention of a litigant is to drag the proceedings. For appointment of a second or very same Commissioner to visit the suit properties, the petitioner/plaintiff should make out a tangible case, as to how the earlier Advocate Commissioner's report is bad or bristles with infirmities or the same suffers from irregularities or illegalities in the eye of law. 11. For appointment of a second or very same Commissioner to visit the suit properties, the petitioner/plaintiff should make out a tangible case, as to how the earlier Advocate Commissioner's report is bad or bristles with infirmities or the same suffers from irregularities or illegalities in the eye of law. 11. In the present case on hand, the Revision Petitioner/plaintiff's junior counsel was present at the time, when the Commissioner inspected the suit properties. It is patently and latently evident on behalf of the petitioner/plaintiff, no objections have been raised or filed on the Commissioner's report. Only when the first Commissioner's report is found to be useless or unhelpful to the Court, the trial Court is to appoint the fresh Commissioner or direct the earlier Advocate Commissioner to re-visit the property, provided the concerned petitioner/plaintiff makes out the case for appointment of Commissioner. 12. The indisputable fact in the present case is that the Commissioner originally visited the suit properties in I.A.No.1514 of 2006 on 08.08.2007. The petitioner/plaintiff was not present on that occasion. Just because, the revision petitioner/plaintiff has made numerous alterations in the suit properties, and hence, she sought for re-issuance of the very same Commissioner's warrant, cannot be a ground enabling the petitioner/plaintiff to file I.A.No.1928 of 2009 seeking the appointment of very same Advocate Commissioner to inspect the suit properties and to submit his report. The Commissioner, after his original visit, has filed his report on 17.08.2007. Merely because, the Commissioner has submitted his report, it will not enable the Court of law to rely upon the same and to pass appropriate orders as it deems fit and proper in the main case. 13. The Object of a Commissioner is not to indulge in fishing expedition or to gather evidence, which could be taken in court but to obtain evidence for elucidating matters, which are local in character. It is in the discretion of the court to issue it or not. More particularly, the report of the Advocate Commissioner is not final and conclusive. It has only the persuasive value and a Court of law take into account the contents of the Advocate Commissioner's report along with other oral and documentary evidence that let in and marked in the main case. More particularly, the report of the Advocate Commissioner is not final and conclusive. It has only the persuasive value and a Court of law take into account the contents of the Advocate Commissioner's report along with other oral and documentary evidence that let in and marked in the main case. No wonder, the rejection of the I.A.No.1928 of 2009, prayed for revisit of the very same Advocate Commissioner does not involve any decision or any issue or adjustment of any right. 14. It is true that a Court of Law has a duty to appoint the Second Commissioner or remitting the matter to the same Commissioner for the relief sought for, provided, the petitioner/plaintiff makes out a case in this regard. In the present case, the main suit is ready for conduct of trial. In the earlier I.A.No.1514 of 2006, Advocate Commissioner was appointed to note down the physical features. The junior counsel for the petitioner and the first Respondent's husband were present during the visit of Commissioner. Proper notice was issued by the Commissioner to both counsel, prior to the commencement of the visit and thereafter only the Advocate Commissioner submitted his report dated 17.08.2007. In this background, I.A.No.1928 of 2009 was filed after two years from the date of filing of the Advocate Commissioner's report without projecting/filing necessary objections to the Commissioner's report. 15. The reason assigned by the petitioner/plaintiff is that only the junior counsel of the petitioner/plaintiff was present and the senior counsel on record was not present, when the Commissioner has visited the suit properties, which cannot be accepted and the reason is only a farfetched one. 16. In view of the above qualitative and quantitative discussion as mentioned supra and also this Court taking note of the important fact that the Advocate Commissioner's report is not be-all and end-all of the matter and also when the first report of the Advocate Commissioner in I.A.No.1514 of 2006 is not found to be unsatisfactory by the trial court, then, this Court comes to an inescapable conclusion that the second endeavor made by the petitioner/plaintiff in projecting the I.A., is only an otiose one and also that the I.A.No.1928 of 2009 is only a superfluous or supernumerary one. 17. On going through the order of dismissal of I.A.No.1928 of 2009 passed by the trial court, this court does not find any impropriety or illegality. 17. On going through the order of dismissal of I.A.No.1928 of 2009 passed by the trial court, this court does not find any impropriety or illegality. Looking at from any angle, the Civil Revision Petition is devoid of merits. Accordingly, the Civil Revision Petition is dismissed and the order dated 22.03.2010 passed in I.A.No.1928 of 2009 in I.A.No.1514 of 2006 in O.S.No.351 of 2005 is affirmed for the reasons mentioned above. 18. In view of the fact that the suit in O.S.No.351 of 2005 (Seven years pending matter), the trial court is directed to bestow its attention and to dispose of the said main suit, within a period of four months from the date of receipt of a copy of this order and to report the compliance to this Court without fail. Consequently, connected M.P., is closed.