BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :17/12/2008 CORAM THE HONOURABLE MR. JUSTICE S.PALANIVELU C.R.P. (NPD)(MD).No.2020 of 2008 and M.P(MD).No.1 of 2008 G.Manoharan .. Petitioner Vs A.Rajeswari .. Respondent * * * Civil Revision Petition filed under Article 227 of the Constitution of India to call for records and set aside the order dated 14.02.2008 passed in I.A.No.106 of 2007 in A.S.No.34 of 2006 on the file of the learned Subordinate Judge, Srivilliputhur. !For Petitioner... Mr.T.R.Jeyapalam ^For Respondent... Mr.R.Suriyanarayanan :ORDER
The petitioner is the defendant in O.S.No.168 of 2002 on the file of the
District Munsif Court, Srivilliputhur. The respondent filed a suit for
permanent injunction and also for mandatory injunction. The suit was decreed in
favour of the respondent and the petitioner carried the matter on appeal in
A.S.No.34 of 2006 on file of the Subordinate Court, Srivilliputhur. Pending
hearing of the appeal, this petitioner filed an application under Order 26, Rule
9, C.P.C. for appointment of an Advocate Commissioner to measure the first
schedule property namely, the lane as well as the houses belonging to both
parties.
2. In the affidavit, he has stated that the trial Court appointed an
Advocate Commissioner and at the time of his inspection on 21.06.2002, he
requested him to measure the walls of the houses belonging to both parties but
the Advocate Commissioner refused to do the same. In addition to this, he has
not mentioned anything about the boundaries or measurements in his report. Only
when the measurements of houses of both parties are taken, the fact as to
whether the first schedule property is a common lane or a private lane, can be
ascertained.
3. The petition was resisted by the respondent by stating that there is
no need to measure the properties belonging to both parties and Exs. A.2, A.3 &
A.10 are enough to decide the measurements of the properties.
4. The learned Subordinate Judge, Srivilliputhur, dismissed the
application by observing that the petitioner has already filed his objections to
the Advocate Commissioner’s report before the trial Court.
5. Even though the petitioner filed objections to the Advocate
Commissioner’s report before the trial Court, he had not taken any steps to file
an application to re-issue of Advocate Commissioner’s warrant. After the delay
of six years, he has come forward with this application. The Advocate
Commissioner inspected the suit property in the year 2002 and only in the year
2007 he has filed this application. The petitioner has not produced any title
deeds before the Court below and on the strength of Exhibits marked on the side
of the respondents namely, Exs. A.2, A.3 & A.10, the trial Court has decided
the issue.
6. The learned counsel for the respondent would submit that since the
burden of proof is on the plaintiff namely, this respondent, he has already
established his rights before the trial Court by production of relevant
documents and there is no need to appoint the Advocate Commissioner.
7. The learned counsel for the petitioner would contended that inasmuch
as the petitioner has already objected to the Advocate Commissioner’s report and
in view of the fact that the Advocate Commissioner refused to measure the houses
of the parties, the necessity to file an application has arisen. This Court is
not inclined to accept the contentions on behalf of the petitioner for the
reason that the materials are already available in the suit and further evidence
need not be collected by way of appointment of an Advocate Commissioner.
8. The learned counsel for the respondent, in support of this
contention, garnered support of a decision of this Court reported in 2002 (3)
CTC 20, in which the learned Judge, after referring to earlier decision of this
Court in 2000(3) L.W.787, R.Satyanarayana Rao and 3 others Case, held that when
there is no dispute with regard to the nature of the suit property, there is no
necessity for appointment of an Advocate Commissioner to identify the character
of the suit property. As far as the facts of the present case are concerned,
whether the suit lane is a common lane or a private lane, has to be decided on
the strength of the oral evidence and the Advocate Commissioner cannot decide
the issue.
9. In yet another decision of this Court in (2005)1 M.L.J.592,
Subramaniam V. Mariappan, represented by his Power Agent Chinnasamy and another,
this Court has observed thus:
“There is absolutely no justification in a suit of this nature, namely for
rectification of documents, for the contested party to seek for an appointment
of Commissioner at the appellate stage. The trial Court had gone into the issue
in detail and has found against the first respondent. The appellate Court has to
proceed further only on the basis of the materials available before it and the
first respondent cannot be permitted at a later stage to ask for appointment of
Commissioner to note down the physical
features. There is absolutely no justification for the appellate Court to have
ordered the petition filed by the petitioner.”
10. In this case, there is no dispute with regard to the identity of the
property. Considering the fact that the application is a belated one and also
the fact that the appointment of Advocate Commissioner is not at all needed to
adjudicate the rights of the party, this Court is of the view that the order
passed by the appellate Court is well founded which needs no interference.
11. The Civil Revision Petition is devoid of merits and hence, the Civil
Revision Petition is dismissed. Consequently, connected Miscellaneous Petition
is closed. No costs.
ns/srm
To
The Subordinate Court,
Srivilliputhur.