BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/08/2011 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.R.P(PD)(MD)No.204 of 2010 and M.P(MD)No.1 of 2010 1.M.Nachiappan 2.V.Asokan ..Petitioners/Respondent/Defendants Vs 1.A.Nachiappan 2.A.Marthandam 3.T.Nachal @ Revathi 4.V.Nachiappan 5.V.Radhalakshmi ..Respondents/ Petitioners / Plaintiffs PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decretal order passed on 04.12.2009 in I.A.No.447 of 2009 in O.S.No.177 of 2007 on the file of the Additional District Munsif Court, Karaikudi. !For Petitioners ... Mr.T.S.Mohamed Mohideen ^For Respondents ... Mr.T.V.Sivakumar for Mr.B.Muruganandham :ORDER
This petition has been filed by the petitioners/defendants to set aside
the fair and decretal order passed on 04.12.2009 in I.A.No.447 of 2009 in
O.S.No.177 of 2007 on the file of the Additional District Munsif Court,
Karaikudi.
2.The short facts of the case are as follows:-
The respondents/plaintiffs have filed a suit in O.S.No.177 of 2007 on the
file of the District Munsif Court, Karaikudi against the revision petitioners /
defendants for declaration and injunction stating that the ‘A’ Schedule property
belongs to the 1st plaintiff and that his peaceful possession would not be
disturbed. The ‘B’ schedule property belongs to the 2nd plaintiff. As such,
the 2nd plaintiff seeks a declaration and injunction restraining the defendants.
The 3rd plaintiff seeks injunction and declaration restraining the defendants
from interfering with his peaceful possession and other relief. The said suit
has been resisted by the defendant and written statement has also been filed.
3.The plaintiffs have filed an interlocutory application in I.A.No.83 of
2009 to appoint an advocate commissioner for inspection of the suit property in
order to prove the plaintiffs possession and enjoyment and extent of land
possessed by them. The said application for appointment of Advocate
Commissioner was opposed by the defendants, who had filed counter statements.
The learned Judge, after hearing the arguments of the learned counsel on both
sides and on scrutiny of the averments on both the sides, dismissed the said
application.
4.Thereafter, the plaintiffs have filed another application in I.A.No.447
of 2009 in O.S.No.177 of 2009 with the same prayer of appointment of Advocate
Commissioner. This application was also opposed by the defendants, who filed
counter statement. The learned Judge, after considering the arguments advanced
by the learned counsels of both the parties, and after considering the averments
of both parties appointed an advocate commissioner, who was directed to inspect
the petition mentioned property with the help of a Taluk Surveyor and to measure
the suit property and to note down the physical features.
5.Against the said order, the revision petitioners /defendants have filed
the above revision petition to set aside the order and decretal order passed in
I.A.No.447 of 2009 in O.S.No.177 of 2007 on the file of the Additional District
Munsif Court, Karaikudi. The learned counsel for the revision petitioner argued
that no petition under Order 26 Rule 9 can be maintained to fix the possession
of property and that the failure of possession cannot be decided by appointing a
commissioner. It was also pointed out that when an earlier application for
appointment of commissioner was dismissed, allowing the subsequent application
which has the same literal meaning is unsustainable. It was also argued that
the mere apprehension that the defendant may encroach upon the suit property
cannot be a ground to allow a petition under Order 26 Rule 9. The learned
counsel has also argued that the property has been described by the plaintiffs
and it any dispute arise, if can be settled by letting evidence. As such the
aim of the plaintiff to locate the possession has not been looked clearly by the
lower court. The learned counsel for the revision petitioner further argued
that the plaintiffs have filed the 2nd application for appointment of advocate
commissioner, on the same purpose, with the intention of dragging on the
proceedings.
6.The learned counsel for the respondents argued that if the advocate
commissioner inspects the property and notes down the physical features of the
property with the help of a Taluk Surveyor, the interest of the revision
petitioners would not be prejudiced. There is no necessity to drag on the suit
proceedings since the respondents/plaintiffs have sought relief against the
revision petitioners / defendants. The 2nd application for appointment of
advocate commissioner has been done with the view to determine the physical
feature of the property.
7.In support of this case, he cited a judgment in the case of
Mangayarakarasi Ammal Vs. Nagammal reported in 2009(5) CTC 444. The relevant
portion of this Judgment reads as follows:-
“Code of Civil Procedure, 1908 (5 of 1908), Section 11 and Order 26, Rule
9 – Res judicata – Whether earlier dismissal of Interlocutory Application would
operate as res judicata – Respondents filed Application for appointment of
Advocate Commissioner to ascertain market value of suit property – Trial Court
dismissed Petition on ground that no issue framed regarding valuation of suit
property – Subsequently additional issue framed as to whether said Court has
pecuniary jurisdiction – Respondents filed second Application for appointment of
Advocate Commissioner to ascertain market value of suit property which was
allowed – Whether similar Petition is maintainable for same purpose when earlier
Application is dismissed – Held : Second Application for same relief is
maintainable as it has not been decided finally and conclusively in earlier
Application – Pandurag Ramachandra Mandlik and another V. Shanta Bai Ramachandra
Ghatge and others, AIR 1989 SC 2240 and U.P.E. Supply Co. V. T.N.Chatterjee, AIR
1972 SC 1201, followed.”
8.In another Judgment in the case of A.Nagarajan vs. A.Madhanakumar
reported in 1996(1) CTC 229. The relevant portion of this Judgment reads as
follows:-
“Code of Civil Procedure 1908, Order 26, Rule 9 – Appointment of
Commissioner in Rent Control Proceedings – Stage of Appointment of Commissioner
– Power of Court. Rent Controller appointed a Civil Engineer as Commissioner to
submit report with plan – Application was moved during trial – Civil Revision
Petition under Article 226 challenging order appointing commissioner was
dismissed – Validity of such order appointing commissioner can be challenged in
appeal preferred against final order and not by invoking extraordinary
jurisdiction under Art.227 of the Constitution of India.”
4.The main dispute now revolves round the point is at what stage and when
a commissioner can be appointed by the Court?
Rules 9 of Order 26, C.P.C. Contemplates in any proceeding, in which the Court
is of the opinion that local investigation is requisite or proper for the
purpose of elucidating any matter in dispute it may issue a commission to such
person as if think fit direct him to make such investigation and to report
thereon to the Court (Italic is mine). Such report shall form part of the
record. But the Court or with the permission of the Court, any of the parties
to the proceeding may examine the Commissioner in open court touching any of the
matters referred to him or mentioned in his report as to the manner in which he
has made the investigation. Whether the court is, for any reason, dissatisfied
with the report, it may direct further enquiry to be made as it shall think fit.
The purpose of local investigation is ascertaining, collecting or elucidating
facts in respect of any matter in dispute after proper scrutiny of examination
and sifting of materials. Elucidate according to Websters Dictionary means “to
make light or clear, to explain, to remove obscurity from and render
intelligible, to illustrate “. According to Chambers Dictionary, elucidate
means to make lucid or clear or to through light upon, to illustrate, making
clear, explanatory”. According to the Oxford Dictionary, ” elucidate means to
throw light on, explain” etc.
5.For the purpose of elucidating facts in respect of any matter in dispute
means where the circumstances render it expedient in the interest of justice to
do so, the Court has power, which is discretionary in nature, to appoint
Commissioner for the purpose of ascertaining, to make it clear, intelligible and
to throw light upon the matter in issue, means the main dispute as well as the
facts leading to the dispute. The course may be adopted after the examination
of the party or parties of suo motu. If the courts feels that clarification or
confirmation is necessary on certain aspects on which the Court entertains doubt
in the matter in issue or dispute, or the disputed questions of fat, for the
purpose, of ascertaining, clarification, or for proper scrutiny and examination,
this course can be restored to. In P.Moosa Kutty, in re AIR 1953 Madras 632,
this Court has held in any even, an application under this rule must be made
before the case is closed. In this view of the matter, appointment of a
commissioner can be restored to after the evidence of the respective parties
being placed. In Ponnusamy vs. Salem Vaiyappamalai Jangamar Sangam AIR 1986
Madras 33, this court has taken the view that the party has got a right to place
evidence which he could require to substantiate his case before the court and,
of course, subject to the law of evidence and the code, and it is the duty of
the court to receive such evidence, unless there are other justifiable factors
in law to decline to receive such evidence. The evidence so collected through
the Commissioner may be used to elucidate a point which may otherwise be left in
doubt or ambiguity on record. The Commissioner in effect is a projection of the
Court appointed for a particular purpose.”
“10.It is well settled that Article 227 of the Constitution can be invoked
only in the following circumstances, namely, when there is lack of jurisdiction,
erroneous assumption of jurisdiction of excess of jurisdiction of where there is
gross dereliction of duty, flagrant violation of law, error of law apparent on
face of the record or where there is violation of principles of natural justice
and finding is based on no material or whatever which is by very nature
arbitrary or capricious. The power conferred on the court to appoint a
commissioner for local inspection is for better appreciation of the evidence
already on record. The trial court had the jurisdiction to decide under what
circumstances it can appoint a Commissioner. The Commissioner so appointed is
not performing a judicial act and it is a “ministerial Act”. Nothing is left to
discretion and there is no occasion to use judgment or adjudicate the issue
involved but only noting the details and reporting the actual state of affairs.
Such report does not automatically form part of evidence in the proceeding and
the court has power to confirm, vary or set aside the report or issue a new
commission. Hence there is neither abdication nor delegation of the powers of
functions of the Court to decide the issue. Only an examination of the
Commissioner, the report forms part of the record and evidence. The opposite
party has opportunity to cross-examine the Commissioner. Of course, failure
to do so to elicit such information as it required, cannot at later stage object
to the report being accepted on the ground Commissioner not examined or cross
examined. The contention of the learned counsel that the impugned order is per
see illegal, unsustainable and amounts to delegating the functions of the Court
to decide the issue are misconceived and hence rejected. The act of appointing
a commissioner cannot be termed as one without jurisdiction.”
“………Learned Judge ought to have allowed the respondent-petitioner to
complete his side of the evidence and then resorted to this course of appointing
a Commissioner, if so advised. As has been held by this Court in Sangili V.
Mookan I.L.R . 16 Madras 350, the word elucidation presupposes the existence of
some independent evidence on record. It is reasonable to resort to the
appointment of a Commissioner after placing evidence by the respective parties.
With respect, I differ from the view expressed in Johan v. Kamarunnissa AIR,
1989 Kerala 78. Thus, I answer the point that Commissioner can be appointed
after closure of his side of evidence by a party for the purpose of
clarification, explanation and proof of the matter in issue or a fact which
requires elucidation. I see no reason to quash the impugned order, but however,
I direct the learned Judge to complete the evidence of the respondent who is the
petitioner in R.C.O.P. and then give effect to the order impugned. ”
9.In another Judgment in the case of ponnusamy vs. Salem Vaiyappamalai
jangamar Sangam reported in AIR 1986 Madras 33. The relevant portion of this
Judgment reads as follows:-
“9. Coming to the question as to whether, on the basis that the order
passed by the Court below is a case decide, there is a warrant for interference
within the meaning of S.115 of the Code, I find that it is so. A controversy,
as we could see from the pleadings, has arisen as to whether the constructions
put up by the third defendant are within his land or whether they have
encroached into the lands of the plaintiff. A local investigation is the best
way to find out the position and the party, namely, the third defendant’
coveting to place the evidence before the court through local investigation by
the Commissioner cannot be shut out of that right. A misconception has weighed
in the mind of the Court below when it reasoned that there is no dispute about
the ownership of S.No.289/1 by the third defendant. That is not the point in
issue. Shutting out the evidence which a party is entitled to place before
Court to substantiate his case, definitely decides that right of the party,
adversely against him and in this view, the order passed by the Court below is a
‘case decided’ and apart from that, on merits the order passed by the Court
below comes within the mischief of the ratio adumbrated in S.115 of the Code.
There has been a failure to exercise jurisdiction vested in it by the Court
below to a patent misconception of the position and this obliges me to interfere
in revision.”
10.In another Judgment in the case of Saraswathy vs. Viswanathan reported
in 2002(2) CTC 199. The relevant portion of this Judgment reads as follows:-
“Code of Civil Procedure, 1908 Order 26, Rule 9 – Appointment of Advocate
Commissioners – Grounds for – In suit for permanent injunction restraining
defendant from interfering with plaintiffs easmentary right and light and air
to suit property – Plaintiff sought appointment of Advocate Commissioner to
visit suit property and note down physical features of suit property including
age and stage of new construction in suit property – Absence of dispute with
regard to identity of property does not disentitle party to seek appointment of
Advocate Commissioner – Advocate Commissioner could be appointed and directed to
note physical feature of property and verify whether construction put up is in
accordance with sanctioned plan – Object of appointment of Commissioner is not
to collect evidence but to elucidate matters which are local in character and
which can be done only by local investigation at spot – Commissioner cannot
decide dispute but his report would help Court in deciding dispute – No
prejudice is caused to other side by appointing Advocate Commissioner – Order of
trial Court refusing to appoint set aside and trial Court directed to appoint
Advocate Commissioner – .”
11.In the facts and circumstances of the case and at the hearing of
arguments advanced by the learned counsel on both sides and on perusal of the
order of appointment of Advocate Commissioner passed in I.A.No.447 of 2009 in
O.S.No.177 of 2007 on the file of the Additional District Munsif Court,
Karaikudi, this Court is of the considered opinion that (1) The appointment of
advocate commissioner has been done not with a view for favouring either of the
parties but has been done to get more clarity and insight into the said suit
property to render proper verdict to the parties concerned. (2) The expenditure
incurred for utilising the service of advocate commissioner will be borne by the
petitioner, who has sought for appointment of advocate commissioner (3) The mere
appointment of advocate commissioner will not be prejudicial to the interest of
the revision petitioners/defendants, as he has been appointed only for the
purpose of determining the actual possession of the property. Considering the
above mentioned aspects, the order passed by the learned Judge in I.A.No.447 of
2009 in O.S.No.177 of 2007 is found to be fair in the circumstances of the case.
12.Resultantly, the above civil revision petition is dismissed.
Consequently, the order and decretal order passed in I.A.No.447 of 2009 in
O.S.No.177 of 2007 on the file of the Additional District Munsif Court,
Karaikudi is confirmed. Connected miscellaneous petition is closed. This court
further directs the learned Judge to dispose the case within a period of six
months, without being influenced by the discussion of this court. Accordingly
ordered. There is no order as to costs.
skn
To
The Additional District Munsif,
Karaikudi.