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2023 DIGILAW 711 (MAD)

Valarmathi v. K. Rakkiappan

2023-03-01

SATHI KUMAR SUKUMARA KURUP

body2023
JUDGMENT (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 11.01.2023 made in IA.No.3 of 2022 in OS.No.141 of 2022 on the file of the District Munsif Court, Perundurai, by allowing this Civil Revision Petition.) This Civil Revision Petition is filed by the first Defendant in OS.No.141 of 2022 on the file of the Learned District Munsif Court, Perundurai. 2. It is the contention of the Learned Counsel for the Revision Petitioner that the Plaintiff in OS.No.141 of 2022 had filed a suit for declaration of his right in the cart track in RSF.No.579/19A, 579/12B, 579/11J and RSF.No.579/11A from North-South road in RSF.No.578 to RSF.No.579/5 of Nichampalayam Village in Perundurai Taluk. 3. It is the further contention of the Plaintiff in the suit that the adjacent land owner to the suit property had been preventing the Plaintiff from using common cart track pathway. It is the further contention in the plaint that the cart track had been used in common for more than 50 years. Therefore, he had sought an appointment of Advocate Commissioner in IA.No.3 of 2022 in OS.No.141 of 2022. 4. It is the contention of the Learned Counsel for the Petitioner/first Defendant in the suit in OS.No.141 of 2022 that the Learned District Munsif, Perundurai, had allowed the petition in IA.No.3 of 2022 as per the order dated 11.01.2023 ignoring the vehement objection of the Respondent in the application. 5. It is the further contention of the learned counsel for Petitioner herein who is the first Respondent in IA.No.3 of 2022 who is the first Defendant in the suit that the Advocate Commissioner petition is not maintainable as it is an attempt to collect the evidence. The Plaintiff is entitled to prove his case through oral and documentary evidence in support of his plaint averments. Whereas, here it is the case where the Plaintiff is attempting to collect the evidence. Therefore, it cannot be permitted. 6. After due enquiry, the Learned District Munsif, Perundurai, in the order in IA.No.3 of 2022 dated 11.01.2023 ignoring the vehement objection of the first Defendant/first Respondent in the counter had allowed the petition. Also no reasons had been given for appointment of Advocate Commissioner. Therefore, it cannot be permitted. 6. After due enquiry, the Learned District Munsif, Perundurai, in the order in IA.No.3 of 2022 dated 11.01.2023 ignoring the vehement objection of the first Defendant/first Respondent in the counter had allowed the petition. Also no reasons had been given for appointment of Advocate Commissioner. Therefore, aggrieved by the same, the first Defendant in the suit and the Respondent in IA.No.3 of 2022 had preferred this Civil Revision Petition under Article 227 of the Constitution of India, seeking to set aside the order dated 11.01.2023 in IA.No.3 of 2022 in OS.No.141 of 2022. 7. In support of his contention, the Learned Counsel for the Petitioner relied on the decision of the Learned Single Judge of this Court in CRP.(PD).No.3980 of 2016 dated 08.03.2022 and also placed reliance on the earlier reported ruling of this Court in 2006-4-L.W.516 & 2006-4- L.W.525. 8. The Learned Counsel for the Petitioner seeks to set aside the order passed in IA.No.3 of 2022 in OS.No.141 of 2022 dated 11.01.2023. 9. The Learned Counsel for the Respondent in OS.No.141 of 2022 had vehement objection to the submission of the Learned Counsel for the Petitioner stating that the Advocate Commissioner was appointed in IA.No.3 of 2022 and he had filed the report along with plan. It is not the case for collecting evidence. It is the petition seeking appointment of an Advocate Commissioner to note down the physical features. Therefore, the same will help the Court to appreciate the evidence better. In support of his contention, the Learned Counsel for the Respondent also placed reliance on reported ruling of this Court in CDJ 2007 MHC 2947 at para No.6 which reads thus: “6. It is true that the Advocate Commissioner''s report and plan cannot substitute the documentary evidence like title deeds, Village Map, etc., But, a perusal of the order impugned would show that the trial court was convinced in granting the relief only to assist the court in arriving at a right decision. The court can appoint Advocate Commissioner for local investigation and such local investigation is to be done at the earliest stage of litigation regarding identification, location and measurement of land or premises or object of suit property. Such report and plan is to be used for appraisal of the situation and or better understanding of evidence of parties. The court can appoint Advocate Commissioner for local investigation and such local investigation is to be done at the earliest stage of litigation regarding identification, location and measurement of land or premises or object of suit property. Such report and plan is to be used for appraisal of the situation and or better understanding of evidence of parties. Primary object of appointing an Advocate Commissioner is to guide the court in the process of decision making and not to be used as the basis of decision. In the present case, since the relief claimed is for interim injunction restraining the defendants from preventing or damaging the very suit cart of the plaintiffs, and the case of the defendants is that the plaintiffs are having separate ittery and have no rights over the defendants'' pathway, the appointment of an Advocate Commissioner is very much essential to find out whether the suit cart track leads to the property of the defendant and also whether there is any alternative pathway for the defendants and by this process, no prejudice would be caused to the defendants. Therefore, I do not find any illegality or infirmity in the order of the learned District Munsif, Tiruchengode.” 10. Learned Counsel for the Petitioner placed reliance on the reported ruling of this Court in CRP.(PD).No.3980 of 2016 dated 08.03.2022 wherein the Learned Single Judge of this Court had placed reliance on the reported ruling of this Court in 2006-4-L.W.525, wherein it was held that Advocate Commissioner cannot be appointed to collect the evidence. It is duty cast upon the Plaintiff to prove the case by placing oral and documentary evidence. 11. In the reported ruling of this Court in 2006-4-L.W.516 in the case of Chinnathambi and others Vs. Anjali, it was stated that the Plaintiff in the suit had stated that the Defendants are making arrangements to obliterate her cart-track or land and also proposed to encroach a further extent of 0.09 cents, whereas, there is no averment in the plaint that there is an encroachment of land and therefore, the petition for Advocate Commission was rejected. Here, it is the specific case in the Civil Revision Petition of the Plaintiff that the Defendants have no right on the cart track. Therefore, he has filed the suit for declaration of the right to common cart track which is stated to be in existence for more than 50 years. Here, it is the specific case in the Civil Revision Petition of the Plaintiff that the Defendants have no right on the cart track. Therefore, he has filed the suit for declaration of the right to common cart track which is stated to be in existence for more than 50 years. It is for him to prove the same through oral and documentary evidence. Regarding the physical features of the property, Order XXVI Rule -9 of the Code of Civil Procedure provides to appoint an Advocate Commissioner to note down the physical features. That itself does not mean collecting evidence as rightly pointed out by the Learned Counsel for the Respondent before the trial Court. It would help the Court to appreciate the evidence in a better manner and any just appointing an Advocate Commissioner does not cause prejudice to both the parties. The vehement objection of the Defendants that no Advocate Commissioner should be appointed, is found unacceptable. Considering the fact that after the suit was instituted immediately, an Advocate Commission was sought and accordingly the Learned District Munsif, Perundurai had appointed an Advocate Commissioner. Though it is vehement objection of the Learned Counsel for the Defendants seeking to set aside the order that the Learned District Munsif, Perundurai, had not passed a detailed order, the order does not warrant any interference usually in cases where it is better way if applications to appoint Advocate Commissioner are allowed by the Court, for which, the Court does not need to give any detailed reason. Therefore, the contention of the Learned Counsel for the Petitioner placing rulings are rejected. The submission of the Learned Counsel for the Respondent is found acceptable in the light of the reported two rulings of this Court in 2006-4-L.W.516 & 2006-4-L.W.525. 13. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.