IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.PD.No2606 of 2008 and M.P.No1 of 2008 1. Balasubramaniam 2. Natesan 3. Selvaraj 4. Azhagayammal 5. Perimayammal ... Petitioners Vs 1. Kanagaraj 2. Nataraj 3. Sekar 4. Venkatraj 5. Padmanabhan 6. Senthil 7. Marappagounder ... Respondents This Civil Revision Petition is filed under Article 227 of Constitution of India, against the fair and decretal order dated 19.6.2008 made in I.A.No. 419 of 2008 in O.S.No.92 of 2008, on the file of the Court of District Munsif, Sankari. For Petitioners : Mr.N.Manoharan For respondents : Mrs.G.Devi For Mr.V.Raghupathi O R D E R
The revision petitioners/petitioners/Plaintiffs have preferred this revision petition aggrieved against the order dated 19.6.2008 in I.A.No.419 of 2008 in O.S.No.92 of 2008 passed by the District Munsif,Sankari in dismissing the application filed by them under Order 26 Rule 9 of CPC praying for appointment of an Advocate Commissioner to make a local inspection of the suit property and note down the existing of the physical features in and around the suit property in particular to note down the existence of the suit, A,B,C,D Cart track and to file his report with plan.
2. The trial Court while passing orders in I.A.NO.419 of 2008 in O.S.No.92 of 2008 has inter alia observed that the revision petitioners/petitioners/plaintiffs have not filed documents in regard to their existing right in the cart track and therefore has come to a conclusion that the appointment of an Advocate Commissioner is not necessary and resultantly dismissed the application.
3. Admittedly, the revision petitioners/petitioners/plaintiffs have filed suit in O.S.No.92 of 2008 on the file of District Munsif, Sankari praying for a relief of permanent injunction restraining the defendants, their men, servants and agents from in any way interfering with the plaintiffs peaceful user and enjoyment of the suit A,B,C,D Cart track.
4. In the written statement filed by the fourth defendant which has been adopted by the other defendants at paragraph 5 , it is stated that ‘ on east of 105/3, a road has a width of not 20 feet but only 10′ width running North-south as per the FMB is admitted too be a true one and further that the defendants are the absolute perfect valid title holders of the lands situate on the East and West of S.NO.105/4, measuring about 13.70 Acres. For their convenient use and enjoyment of the property, the defendants have formed the Mud Road to take their cattles and cart from the Farm House, which situate in the centre of the above said 13.70 Acres of land so as to avoid causing damage and wastage to the crops while the cattles and carts taken in and out of their land’.
5. It is to be noted in the written statement filed by the defendants before the trial Court at paragraph 5 , it is also averred that ‘ the alleged ABCD Cart Track as stated in paragraph 3 of the plaint is non existing one , it is only imaginary and illusory road marked in the rough sketch in order to mislead the Court to achieve their ulterior motive to make illegal and unjust enrichment and that the existence of ABCD Cart Track as alleged by the plaintiffs is not at all supported by either Revenue records or by any title document.
6. At this juncture, the learned counsel appearing for the respondents/defendants produces a xerox copy of the Field Map before this Court in respect of S.No.105 and a perusal of the said Field Map by this Court shows that there is no indication of Cart Track much less ABCD Cart Track in the said map.
7. The learned counsel appearing for the revision petitioners /plaintiffs submits that an Advocate Commissioner can be appointed for the purpose of elucidating any matter in dispute and in support of his contention, he relies on the decision reported in Visalakshi Ammal-v- Pormannan alias Raja and another(2007(2)CTC 112) wherein this Court has inter alia held that ‘Commission could be appointed for the purpose of elucidating any matter in dispute and the plaintiff who had given measurement of suit property in notice issued prior to filing of suit cannot come under above expression occurring in Order 26 Rule 9 CPC and seek appointment of Commission to verify extent of suit property which he had already explained’. He also cites another decision reported in Haryana Waqf Board-v- Shanti Sarup and others(2008) 8 Supreme Court Cases 671) wherein the Honourable Apex Court has observed that ‘the controversy between the parties was regarding demarcation of land because the parties had adjacent lands’. He further press into service the decision reported in S.Palanisamy Gounder -v- N.Palanisamy and three others (2007 (1) CTC 611) wherein this Court has held that the primary object of appointing of Commissioner is to guide Court in process of decision making and not to use as basis of decision. Yet another decision has been relied on the side of the revision petitioners viz., Vaithinattar-v- Sakkubai Ammal(AIR 2004 Madras 419) wherein this Court has held that ‘ Best evidence in such case could be obtained only by appointment of Commissioner and as this legal necessity had not been complied with, case has been remanded back to trial Court’.
8. Contending contra, the learned counsel appearing for the respondents/defendants submits that the order passed by the trial Court in dismissing the application for appointment of an Advocate Commissioner is valid in law and that the trial Court has given a cogent reason for dismissing the application for appointment of an Advocate Commissioner and therefore prays that this Court need not interfere with the orders passed by the trial Court.
9. The learned counsel appearing for the respondents/defendants cites the decision reported in Meenakshi-v- Vennila and another(2008(5) CTC 181) whereby this Court has held that ‘factum of possession cannot ascertained by seeking an appointment of an Advocate Commissioner and that the party must prove factum of possession by evidence.’ She also relies on the decision reported in Rangasamy-v- The Superintending Engineer, Tamil Nadu Electricity Board, Mettur and three others(2006(4) L.W.525) wherein this Court has held that ‘object of Order 26 Rule 9 is not to collect evidence.’ Another decision reported in Chandrasekaran-v-Doss Naidu(2005)3 M.L.J.473) has been relied on by the learned counsel appearing for the respondents/defendants to the effect that ‘ the material issue of determining the possession cannot be left to the Advocate Commissioner. Added further the decision reported in Chinnathambi and others-Anjalai(2006(5)CTC 494) has been relied on by the learned counsel appearing for the respondents/defendants to the effect that the plaintiff in suit for permanent injunction sought appointment of Commissioner long after having obtained interim injunction to inspect property alleging that defendant was attempting to obliterate Cart-track and no allegation of encroachment was made in plaint and that the order of the trial Court appointing Advocate Commissioner has been set aside in revision’.
10. As far as the present case is concerned, the revision petitioners/petitioners/plaintiffs have only filed a suit for permanent injunction restraining the defendants, their men from in any way interfering with the peaceful user and enjoyment of the suit A,B,C,D cart track. The revision petitioners/petitioners/plaintiffs also rely on paragraph 5 of the written statement averments made by the defendants . As a matter of fact, the respondents/defendants deny the existence of ABCD Cart track in the suit property as alleged by the plaintiffs and to substantiate the same, they rely upon the field Map issued by the Village Administrative Officer, 46,Kanagagiri, 48, Kandarkulamanickam Village, Sankari Taluk, Salem District.
11. The power of the Court to the appointment of an Advocate Commissioner is purely and discretionary one. It must be borne in mind that in regard to the appointment of an Advocate Commissioner, a party can indulge in fishing expectation or he cannot gather evidence where he himself can produce or procure evidence either by oral or documentary means to substantiate his case. Viewed in that perspective, this Court is of the considered view that I.A.No.419 of 2008 in O.S.No.92 of 2008 projected by the revision petitioners/petitioners/plaintiffs praying for appointment of an Advocate Commissioner is only a redundant one and not a case of necessity and in that view of the matter, this revision fails and the same is hereby dismissed in the interest of justice.
12. In fine, the revision petition is dismissed and the order passed in I.A.No.419 of 2008 in O.S.No.92 of 2008 on the file of the District Munsif, Sankari is affirmed by this Court for the reasons assigned by this Court in these civil revision petition. Liberty is given to the parties to substantiate their claims before the trial Court by adducing best possible evidence in the manner known to law and the trial Court is directed to proceed with the conduct/trial of the main suit in accordance with law. There will be no order as to costs. Connected M.P is also dismissed.
sg
To The District Munsif,
Sankari