BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD)MD.No.465 of 2009 and M.P(MD)No.2 of 2009 Veluchamy ... Petitioner/Petitioner/Appellant Vs. 1.Vekadasamy 2.Dhanalakshmi ... Respondents/Respondents/Respondents Prayer Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the docket order passed by the Sub Court, Virudhunagar, in I.A.No.90 of 2008 in A.S.No.31 of 2008 dated 15.12.2008 in dismissing the application filed under Order 26 Rule 9 of the Code of Civil Procedure. !For Petitioner ... Mr.G.Mari Muthu ^ * * * * * :ORDER
The revision petitioner/petitioner/appellant has filed this civil revision
petition as against the order dated 15.12.2008 in I.A.No.90 of 2008 in A.S.No.31
of 2008 passed by the learned Sub Judge, Virudhunagar, in dismissing the
application filed by the revision petitioner under Order 26 Rule 9 of the Code
of Civil Procedure, praying for an appointment of an Advocate Commissioner to
inspect the suit property and to measure the same with the help of the revenue
records and the documents of the revision petitioner and with the assistance of
a Surveyor and to submit a report with plan.
2. The first appellate Court has dismissed the I.A.No.90 of 2008 praying
for appointment of an Advocate Commissioner on the basis that an Advocate
Commissioner cannot be appointed to gather evidence to disprove the case of the
respondent in respect of the suit property which is not the subject matter of
the suit and resultantly, dismissed the same.
3. Being dissatisfied with the order so passed in I.A.No.90 of 2008 by the
learned Sub Judge, Virudhunagar, the revision petitioner has come forward with
this civil revision petition before this Court.
4. According to the learned Counsel for the revision petitioner, the first
appellate Court should have seen that the revision petitioner has not filed an
application in order to prove the possession in the suit property and further,
the first appellate Court ought to have seen that the assistance of a Surveyor
is very much required to survey the land with the help of title deeds and if the
property is measured with the assistance of a Surveyor, it will enure to the
benefit of disposing the appeal by the first appellate Court and added further,
the first appellate Court should have borne in mind of the fact that the
Advocate Commissioner can be appointed at any time of the proceedings and since
the order of the first appellate Court is against law, the revision petitioner
prays for allowing the civil revision petition in the interest of justice.
5. It is significant to point out that in the affidavit in I.A.No.90 of
2008 filed by the revision petitioner/ plaintiff, it is specifically averred
that the suit properties have been purchased by means of sale deeds as three
items and that the revision petitioner/plaintiff is in enjoyment of the same and
therefore, the properties are required to be measured in accordance with the
records of Sivakasi Tahsildar and sale deeds with the help of a Surveyor and to
submit a report and a plan through an Advocate Commissioner.
6. Before the first appellate Court, in the counter filed by the second
respondent for her behalf and on behalf of the first respondent, it is
specifically mentioned that in regard to the title of the suit property, there
is main dispute in which the documents can be filed to resolve the same and
based on documents, a decision can be arrived at in the matter in issue and
further, the submission of an Advocate Commissioner’s report will not be of any
assistance in regard to the disposal of the appeal and only at the appellate
stage, an application for appointment of an Advocate Commissioner has been filed
with the view of procrastinating the proceedings and no bona fide reasons have
been mentioned for appointment of an Advocate Commissioner and therefore, they
have prayed for the dismissal of the said application.
7. One cannot ignore a candid fact that the revision petitioner/plaintiff
has filed a suit praying for a relief of declaration in his favour and also for
consequent permanent injunction.
8. It appears that a counter claim has been filed by the defendants under
Order VIII Rule 1 and 6A of the Code of Civil Procedure. It also transpires
that the counter claim of the respondents/defendants have been ordered by the
trial Court. As on date, the appeal proceedings in A.S.No.31 of 2008 are
pending before the learned Sub Judge, Virudhunagar, for consideration.
9. Generally speaking, in a suit filed by the plaintiff, he is a dominus
litus and further, this is not an universal rule, in the considered opinion of
this Court.
10. At best, an Advocate Commissioner’s report can be taken note of by the
first appellate Court along with the other oral and documentary evidence on
record. Even if an Advocate Commissioner is appointed, the report filed by the
Advocate Commissioner is not binding on a Court of law and a Court is entitled
to act independently basing its conclusions on the strength of the documentary
and oral evidence on record. It is also an axiomatic fact that a possession has
to be proved by a litigating party and not by a Commissioner through his
appointment made by a Court of law.
11. On going through the orders passed by the first appellate Court in
dismissing the I.A praying for appointment of an Advocate Commissioner, this
Court is of the considered view that based on the facts and circumstances, the
order passed by the first appellate Court in dismissing an application for
appointment of an Advocate Commissioner cannot be found fault with and this
Court is of the considered view that the revision petitioner/plaintiff can
establish his case and possession by means of oral and documentary evidence
which are already on record and now what remains to be done is only that the
same has to be evaluated by the first appellate Court.
12. In that view of the matter, the revision petition fails and the same
is hereby dismissed to prevent aberration of justice. The parties are directed
to bear their own costs. Consequently, the connected Miscellaneous Petition is
dismissed. Considering the facts and circumstances of the case, this Court as an
equitable remedy, directs the first appellate Court to dispose of the A.S.No.31
of 2008 within a period of three months from the date of receipt of a copy of
this order, after providing due opportunities to both parties. The parties are
directed to lend their co-operation in regard to the completion of the
proceedings and to report compliance.
rsb
To
1.The Sub Court, Virudhunagar.
2.The Section Officer, (Judicial),
Madurai Bench of Madras High Court,
Madurai, (to watch and report).