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2017 DIGILAW 3119 (MAD)

M. Kareemkani v. C. Jeyaveeran

2017-09-12

T.RAVINDRAN

body2017
ORDER : 1. In this civil revision petition, the fair and decreetal orders, dated 06.06.2017, made in I.A.No.466 of 2017 in O.S.No.130 of 2012, on the file of the District Munsif Court, Uthamapalayam, are being challenged by the defendants. 2. The respondent/plaintiff has laid the suit simpliciter for permanent injunction. The petitioners/defendants have disputed the claim of the respondent/plaintiff for sustaining the reliefs sought for in the suit and accordingly, it is found that in order to establish his case, the respondent/plaintiff has to produce acceptable and convincing materials in the suit. It is found that the parties went for trial on the basis of the pleadings set out by them as above mentioned and accordingly, it is found that the evidence on the side respondent/plaintiff had been closed and on the side of the petitioners/defendants, D.W.1 was examined in chief and partly cross-examined. At that stage of the matter, an application has been preferred by the respondent/plaintiff seeking for an appointment of the Commission to note down the physical features of the property involved in the matter as the noting of the physical features of the property by the Commissioner would be essential to adjudicate the issues involved in the matter. The above said application of the respondent/plaintiff was stoutly resisted by the petitioners/defendants contending that there is no need for noting the physical features of the property as claimed by the respondent/plaintiff and the respondent/plaintiff having laid the suit simpliciter for permanent injunction, it is for him to establish his possession of the property concerned by reliable materials and without the same, the attempt of the respondent/plaintiff to further delay the proceedings by seeking the appointment of the Commission to note down the physical features as such is not germane for the rendering of the decision in the suit in any manner and hence, the application is liable to be dismissed. 3. 3. It is found by the Court below that considering the reasons given by the respondent/plaintiff for the appointment of the Commission to note down the physical features and further when the petitioners/defendants have resisted the case of the respondent/plaintiff in their evidence as to the physical features obtaining therein, particularly as to the existence of the nature of the Wells situated therein as the said Wells are round Wells or square Wells and the irrigation facility available in the property and when according to the respondent/plaintiff, there are three square Wells in the property and the Wells are fitted with motor pump set and the irrigation facility is done by embedding pipelines underneath the ground, according to the Court below, the above features are essential to be noted by the Commissioner for effective adjudication of the issues involved in the matter and hence, allowed the application preferred by the respondent/plaintiff. Impugning the same, the present civil revision petition has been preferred. 4. As rightly put forth by the learned counsel for the petitioners/defendants, when the suit is laid simpliciter for permanent injunction, it is for the respondent/plaintiff to establish his possession as such legally and with reference to the same, the respondent/plaintiff has to only produce the evidence available in his custody and not to cull out evidence by appointing Commission. Further, according to him, noting the physical features obtaining in the property, particularly as to the existence of the Wells therein, the nature of the Wells etc., and also whether there is irrigation facility available in the property etc., are not at all germane for the determination of the issues involved in the matter and therefore, it is contended that the Court below had erred in entertaining the application, particularly, when the matter is at a part-heard stage and when the application had been laid five years after the laying of the suit. 5. 5. Per contra, it is argued by the learned counsel for the respondent/plaintiff that considering the evidence adduced by the petitioners/defendants repudiating certain physical features obtaining in the property as spoken to by the respondent/plaintiff in his evidence, it has become necessary on the part of the respondent/plaintiff to establish the same by Commission and hence, the visit of the suit property by the Commissioner is essential and if the actual features available in the property are seen, the same would be essential for adjudicating the issues involved in the matter and hence, the impugned order does not call for any interference. 6. It is found that the present application for the Commission has come to be laid five years after the inception of the suit. If really, according to the respondent/plaintiff, the physical features obtaining in the property are very essential and needy for the purpose of the case, as rightly put forth by the learned counsel for the petitioners/defendants, the respondent/plaintiff would have endeavoured to seek for the appointment of the Commission for ascertaining the same immediately after the filing of the suit. However, no such step has been taken by the respondent/plaintiff, thereafter, hence the parties went for trial and now, the trial has come to the stage of the cross-examination of D.W.1 and at the fag end of the matter. In such view of the matter, when the trial has come to the final stage, at this stage of the matter, the case of the respondent/plaintiff that the ascertainment of the physical features of the suit property is essential for determining the issues involved in the matter, in my considered opinion, is unacceptable. The suit having been laid by the respondent/plaintiff simpliciter for permanent injunction, as rightly argued by the learned counsel for the petitioners/defendants, the respondent/plaintiff should establish his case only by producing evidence available in his custody and not to cull out evidence by seeking appointment of the Commission. Further, it has not been explained as to how the ascertainment of the nature of the Wells in the property, irrigation facility of the property and the embedment of pipeline underneath the property would be essential to establish the possession of the respondent/plaintiff in respect of the property has not been made out. Further, it has not been explained as to how the ascertainment of the nature of the Wells in the property, irrigation facility of the property and the embedment of pipeline underneath the property would be essential to establish the possession of the respondent/plaintiff in respect of the property has not been made out. It is, thus, found that the respondent/plaintiff in order to substantiate his evidence adduced on his part, at the fag end of the trial, seeks to establish the same by the appointment of the Commission and coupled with the matter, it is found that the application for the appointment of the Commission at the instance of the respondent/plaintiff is nothing but an attempt on his part to cull out evidence in support of his case. The practice of culling out evidence by a party through Commission to sustain his case has been all along deprecated. In such view of the matter, the Court below had erroneously and without considering the factual matrix in the wrong perspective, entertained the application for the appointment of the Commission. The facts being above it is found that the Court below, in order to camouflage its order, had given direction to the Commissioner not to give any report as to who is in possession of the suit property or who is in enjoyment of the suit property and who had cultivated the crops in the suit property and who had put up the irrigation facility in the suit property in any manner. If according to the respondent/plaintiff, the only endeavour for the appointment of the Commission is to note down the physical features of the property and if the said case of the respondent/plaintiff is genuine and accordingly, the same had been entertained by the Court below, as rightly argued by the learned counsel for the petitioners/defendants, there is no need on the part of the Court below to give any negative direction to the Commissioner as above mentioned. This aspect alone would go to show that under the guise of the appointment of the Commission, the respondent/plaintiff wants to cull out evidence in support of his case and the Court below also lent its support indirectly to the respondent/plaintiff by appointing the Commission and also directing Commission not to note down certain aspects as above mentioned, which are not at all required to be made, while appointing the Commission for noting down the physical features of the property. 7. In the light of the above discussions, it is found that the application laid by the respondent/plaintiff for the appointment of the Commission to note down the physical features is nothing but an attempt to gather evidence in support of his case, which cannot be legally sustained. In such view of the matter, the impugned order of the Court below does not stand scrutiny in the eyes of law and therefore, it is liable to be set aside. 8. In support of his contentions, the learned counsel for the respondent/plaintiff has placed reliance upon the decision reported in 2017 SAR (Civil) 468 [Ravish and another vs. Smt. R. Bharathi]. However, considering the facts and circumstances of the case at hand, it is found that the above decision would not be applicable to the present case and it is further found that on the facts and circumstances obtaining in the case involved in the above said case, the appointment of the Commission was accepted. Therefore, as rightly argued by the learned counsel for the petitioners/defendants, the above cited decision is not applicable to the case at hand. 9. In conclusion, the fair and decreetal orders, dated 06.06.2017, made in I.A.No.466 of 2017 in O.S.No.130 of 2012, on the file of the District Munsif Court, Uthamapalayam, are set aside and resultantly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.