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2019 DIGILAW 1895 (MAD)

Family Manager, Nagarajan v. Kathasamy

2019-07-19

SENTHILKUMAR RAMAMOORTHY

body2019
ORDER : PRAYER : Petition filed under Article 227 of the Constitution of India, against the fair and decretal order dated 08.11.2013 passed in I.A.No. 1152 of 2013 in O.S.No.341 of 2013 on the file of the District Munsif Court, Musiri. 1. This Civil Revision Petition is filed in order to challenge the order dated 08.11.2013 in an application filed under Order 26 Rule 9 C.P.C for appointment of an Advocate Commissioner. 2. The Revision Petitioner herein is the Plaintiff in the suit. The suit has been filed for a permanent injunction to restrain the Defendant therein/Respondent herein from interfering with the 2/3rd share and rights of the Revision Petitioner/Plaintiff in the well and water therefrom. It appears that the application for the appointment of an Advocate Commissioner was filed along with the plaint. In the affidavit in support of the said Interlocutory Application, the Revision Petitioner has stated that there is enmity between the Revision Petitioner and the Respondent and on account of that, the Respondent is preventing the Revision Petitioner from using the 2/3rd share of the well water which is required for watering the lands of the Revision Petitioner. The said interim application was opposed by the Respondent and eventually by the impugned order, the trial Court held that there is no necessity to appoint an Advocate Commissioner because there is no dispute over the identity of the property and that an Advocate Commissioner cannot be appointed for the purpose of collecting evidence. 3. At the hearing, the learned counsel for the Revision Petitioner submitted that after the filing of the suit, the Respondent herein constructed a wall over the pipeline and has thereby obstructed the use of the well water by the Respondent and that, therefore, it is just and necessary to appoint an Advocate Commissioner so as to inspect the property, take measurements and elucidate matters necessary for the disposal of the suit. 4. In order to substantiate his submissions, the learned counsel for the Revision Petitioner relied upon the judgment of this Court in Saraswathy and others vs. Viswanathan 2002-4-L.W.142 wherein in paragraph nos.9 to 13, this Court dealt with the principles governing the appointment of an Advocate Commissioner. In particular, the Court held that an Advocate Commissioner can be appointed even where the identity of the property has been established and there is no dispute with regard to the same. In particular, the Court held that an Advocate Commissioner can be appointed even where the identity of the property has been established and there is no dispute with regard to the same. The Court further held that the Advocate Commissioner would be in a position to note down the physical features and take measurements so as to eliminate detailed oral evidence and that the object of an Advocate Commissioner is not to collect evidence but to elucidate matters that are local in character and can only be carried out through local investigation. 5. By relying upon the said judgment, the learned counsel for the Revision Petitioner submitted that the principles laid down therein will squarely apply to the facts of the case, in as much as the trial Court refused to appoint an Advocate Commissioner on the ground that there is no dispute over the identity of the property and on the basis that it is a suit for injunction. 6. In response, the learned counsel for the Respondent invited the attention of the Court to paragraph no.13 of the affidavit in support of the petition for the appointment of an Advocate Commissioner and contended that it is very clear from the said paragraph that the petition has been filed for the purpose of collecting evidence. 7. I examined the pleadings, impugned order and considered the oral submissions carefully. 8. It is evident that the parties are disputing the rights in respect of the usage of the water from the well and the Revision Petitioner has averred that a wall has been constructed over the pipeline so as to obstruct the usage of water from the well by the Revision Petitioner. Although the pleadings in support of the petition for appointment of an Advocate Commissioner are not wholly satisfactory and the finding of the trial Court that an Advocate Commissioner cannot be appointed for the purposes of collecting evidence is correct, nevertheless, as correctly contended by the learned counsel for the Revision Petitioner, an Advocate Commissioner would be in a position to carry out local inspection so as to inspect and report on the physical features of the property and this would enable the elucidation of the matters necessary for the disposal of the suit. 9. 9. Accordingly, I am of the view that the order of the trial Court is liable to be set aside and that the petition filed by the Revision Petitioner is liable to be allowed. However, it is evident from the records that the suit is of the year 2013 and therefore, it is just and necessary that the said suit is disposed of within a reasonable time. Therefore, this Civil Revision Petition is disposed of with the following directions:- (i) The order of the trial Court is set aside and consequently, the application for appointment of an Advocate Commissioner is allowed; (ii) The trial Court is directed to dispose of O.S.No.341 of 2013 within a period of nine (09) months from the date of receipt of a copy of this order; (iii) Both the parties are directed to extend full cooperation to ensure that the suit is disposed of within the stipulated time limit; and (iv) There shall be no order as to costs.