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2017 DIGILAW 2951 (MAD)

Mangalanathan v. Sowndaram

2017-08-31

T.RAVINDRAN

body2017
ORDER : 1. The civil revision petition is directed against the fair and decreetal orders, dated 21.04.2017, passed in I.A.No.133 of 2017 in O.S.No.175 of 2016, on the file of the District Munsif Court, Ramanathapuram. 2. The petitioners / plaintiffs have laid the suit for declaration and permanent injunction. It is found that the petitioners / plaintiffs have also laid an application in I.A.No.809 of 2016 seeking for the appointment of an Advocate Commissioner to visit the suit property and file a report and plan with reference to the physical features and other factors obtaining from the suit property. It is found that the Court below has entertained the above said application and appointed an Advocate Commissioner and the Advocate Commissioner, who had been appointed, had also visited the suit property and filed a report and plan. To the report and plan of the Advocate Commissioner, it is found that the respondent / defendant has not put forth any objection. It is, therefore, found that the Commissioner's report and plan had been taken on record. 3. While so, it is found that the respondent / defendant has preferred an application in I.A.No.133 of 2017 alleging that the Advocate Commissioner, who had been appointed to inspect the suit property, had not performed her task properly and that she had not noted the physical features of the suit property by taking the measurements as pleaded in the application and therefore, according to the respondent / defendant, the report of the Advocate Commissioner is liable to be scrapped and the Court below should appoint a new Advocate Commissioner to measure the suit property along with the revenue records and hence, the application. 4. The said application was resisted by the petitioners / plaintiffs, on the footing that the Commissioner, who had already been appointed, had inspected the suit property after giving due notice to both parties and after completion of the inspection, filed a report and plan and the Court below, thereafter had granted adequate opportunities to both parties to file objections, if any, to the report and plan of the Advocate Commissioner. However, the respondent / defendant had not put forth any objection to the same and accordingly, the above said application preferred by the petitioners / plaintiffs for the appointment of an Advocate Commissioner was closed. However, the respondent / defendant had not put forth any objection to the same and accordingly, the above said application preferred by the petitioners / plaintiffs for the appointment of an Advocate Commissioner was closed. In such view of the matter, according to the petitioners / plaintiffs, the respondent / defendant cannot now be allowed to make any complaint about the report and plan submitted by the Advocate Commissioner and the respondent / defendant, without putting forth any objection to the same, cannot seek for scrapping of the report and plan of the Advocate Commissioner and on that sole ground, the present application is liable to be dismissed. Further, according to the petitioners / plaintiffs, the present attempt of the respondent / defendant is only to collect evidence in support of his defence through the appointment of the fresh Advocate Commissioner, which cannot be acceded to as per law. It is further stated that the Commissioner, who had already been appointed, had completed the task as per the warrant issued to her and therefore, there is no need for the appointment of a fresh Advocate Commissioner to visit the suit property again, take measurements and file a report and plan and hence, the application is liable to be dismissed. 5. The Court below, on a consideration of the rival contentions put forth by the respective parties, finding that the respondent / defendant has not filed any objection to the report and plan of the Advocate Commissioner, who had already been appointed, held that the respondent / defendant is not entitled to seek to scarp the report and plan of the Advocate Commissioner and it is, thus, found that the above relief sought for by the respondent / defendant has been negatived by the Court below. 6. However, the Court below, finding that the Advocate Commissioner, who had already been appointed, has not taken note of the measurements of the suit property and as the same is the grievance of the respondent / defendant, entertained the request of the respondent / defendant for the appointment of the fresh Advocate Commissioner to visit the suit property and measure the same with the help of a qualified surveyor along with the revenue records and file a report and plan and accordingly, partly allowed the application preferred by the respondent / defendant. Impugning the same, the petitioners / plaintiffs have preferred the present civil revision petition. 7. The Court below, on holding that the respondent / defendant is not entitled to seek to scarp the report and plan filed by the Advocate Commissioner, who had been appointed earlier, should have felt hesitant to accede to the other request of the respondent / defendant in seeking for the relief of appointment of the fresh Advocate Commissioner to inspect the suit property and measure the same with the help of the revenue records etc. The Court below, in my considered opinion, should not have endeavoured to accept the case of the respondent / defendant straightaway as if the Advocate Commissioner appointed earlier has not measured the suit property as such at the time of the inspection. On the other hand, as rightly argued by the learned counsel for the petitioners / plaintiffs, it is found that the Commissioner had performed her task entrusted by way of the warrant issued by the Court below and accordingly, noted the physical features and also the measurements of the suit property in her report and plan. In such view of the matter, the contentions of the respondent / defendant that the Advocate Commissioner had not performed her task properly and that she has not noted the physical features of the suit property by taking the measurements as such cannot be countenanced. It is not the case of the respondent / defendant that the Commissioner had inspected the suit property in his absence. On the other hand, it is found that the Commissioner, after giving due notice to both parties, had inspected the suit property. If really, according to the respondent / defendant, the measurement of the suit property is essential for the determination of the issues involved in the matter, nothing prevented him from pointing the same to the Advocate Commissioner by way of a memo and make a request to the Advocate Commissioner to measure the suit property as desired by him. It does not stand to the reason as to why, the respondent / defendant kept mum at the time of visiting of the suit property by the Advocate Commissioner earlier and thereafter, had been making complaints about the report of the Advocate Commissioner alleging that she has not taken the measurements of the suit property. It does not stand to the reason as to why, the respondent / defendant kept mum at the time of visiting of the suit property by the Advocate Commissioner earlier and thereafter, had been making complaints about the report of the Advocate Commissioner alleging that she has not taken the measurements of the suit property. As seen above, admittedly, the respondent / defendant has not preferred any objection to the report and plan of the Advocate Commissioner. In such view of the matter, when the respondent / defendant has not placed any objection to the report and plan of the Advocate Commissioner and accordingly, also held by the Court below that the respondent / defendant is not entitled to seek to scarp the report and plan of the Advocate Commissioner and when it is further found that the Advocate Commissioner's report and plan are already on record and intact, the order of the Court below in appointing another Advocate Commissioner to inspect the suit property again, in my considered opinion, would not be correct and proper. If at all, the respondent / defendant has any grievance over the report and plan of the Advocate Commissioner, as provided under Order XXVI Rules 9 and 10 of the Code of Civil Procedure, the remedy available to the respondent / defendant is to seek for examination of the Advocate Commissioner with the permission of the Court and try to cull out the evidence from the Advocate Commissioner as to the failure on her part in not measuring the suit property properly, if any, as pleaded by him and only the reafter, if he is able to satisfy the Court that despite the report and plan of the Advocate Commissioner, the issues involved between the parties could not be determined properly, the Court would be justified in appointing another Advocate Commissioner for the unperformed task. Without resorting to the above said course, on the mere allegation put forth by the respondent / defendant that the Advocate Commissioner has not measured the suit property and therefore, a fresh Advocate Commissioner should be appointed and failing to substantiate the same with acceptable material as stated above i.e., by the examination of the concerned Advocate Commissioner with the permission of the Court as adumbrated by law, in my considered opinion, the respondent / defendant is not entitled to seek for the appointment of the fresh Advocate Commissioner and equally, the Court below is not justified in appointing the fresh Advocate Commissioner for the same task. If this type of request is entertained by the Court below, then there will be a spate of applications laid by the parties one after other complaining about the report and plan of the Advocate Commissioner appointed by the Court and there will be no quietus to the issues and in such view of the matter, as rightly argued by the learned counsel for the petitioners / plaintiffs, the Court below has erred in appointing the fresh Advocate Commissioner to inspect the suit property again for measuring the same as sought for by the respondent / defendant. 8. In support of his contentions, the learned counsel for the petitioners / plaintiffs placed reliance upon the decisions reported in (2005) 2 M.L.J. 227 [Kitnammal vs. Nallaselvan and others] and 2009 (2) CTC 205 [Anna Sudha Devi vs. P.George Samuel]. The learned counsel for the respondent / defendant, in support of his contentions, placed reliance upon the decision reported in (2008) 1 MLJ 961 [K.Vadivel vs. Natarajan and another]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 9. In the light of the above discussions, the impugned order of the Court below is liable to be set aside. 10. In conclusion, the fair and decreetal orders, dated 21.04.2017, passed in I.A.No.133 of 2017 in O.S.No.175 of 2016, on the file of the District Munsif Court, Ramanathapuram, are set aside. Resultantly, the civil revision petition is allowed with costs. Consequently, the connected civil miscellaneous petition is closed.