BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD)MD.No.192 of 2009 and M.P(MD)No.1 of 2009 Albert Raja ...Petitioner/Petitioner/Appellant Vs. 1.Chandra 2.Selva sekar 3.Selva Sundari ... Respondents/Respondents/Respondents Prayer Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the judgment and decree dated 12.09.2008 passed in I.A.No.60 of 2008 in A.S.No.119 of 2006 on the file of the learned Sub Judge, Tuticorin. !For Petitioner ... Mr.S.Kadarkarai ^For Respondents ... No appearance * * * * * :ORDER
The revision petitioner/petitioner/appellant/plaintiff has preferred this
Civil Revision Petition as against the order dated 12.09.2008 in I.A.No.60 of
2008 in A.S.No.119 of 2006 on the file of the learned Sub Judge, Tuticorin, in
dismissing the application praying for an appointment of an Advocate
Commissioner to measure the first item of the petition property as per the
settlement deed by noting down the four boundaries and also to measure the
respondents’ property and to submit a report, with the help of a Surveyor.
2. The first appellate Court while passing orders in I.A.No.60 of 2008 has
inter alia opined that the revision petitioner/plaintiff has not stated proper
reasons as to why to measure the petition property for third time and also the
respondents’ property for the first time and further that, the application has
been filed belatedly and resultantly, dismissed the application.
3. According to the learned Counsel for the revision petitioner/plaintiff,
the first appellate Court has committed an error in rejecting the application
for appointment of an Advocate Commissioner on technical grounds however, going
into the root of the matter and further that, the trial Court has not taken note
of the fact that the respective parties have filed the title deeds and moreover,
the revision petitioner has also filed patta to prove his possession and title
and in reality, the re-issue of commission with the help of a Surveyor will
facilitate the Court to decide the issue without any ambiguity and inasmuch as
the order of the first appellate Court is contrary to law and suffers from
material irregularity in regard to the exercise of jurisdiction, the revision
petition needs to be allowed in the interest of justice.
4. In support of the contention that application for appointment of an
Advocate Commissioner is maintainable before the first appellate Court in law,
the learned Counsel for the revision petitioner/plaintiff cites the decision of
this Court in PR.Chockalingam v. M.Pichai and another reported in 2003 (1) CTC
321, wherein the order of the first appellate Court appointing Commissioner
before hearing appeal has been confirmed.
5. Reliance on the side of the revision petitioner is placed on yet
another decision of this Court in Muthuvelu v. Kuttasavu Sethurayar reported in
(2001) 3 M.L.J 749 wherein a direction has been issued to the trial Court to
appoint an experienced Advocate Commissioner in order to put an end to
controversies and to give finality to resolve the disputes between the parties.
6. At this stage, this Court points out that a report of an Advocate
Commissioner is nothing more than the evidence in the case, its evidential value
is to be judged while scanning and evaluating other evidence, in the considered
opinion of this Court.
7. As a matter of fact, a report of an Advocate Commissioner cannot be the
sole basis for arriving at the decision of a case ignoring other evidences.
Really speaking, the aim of appointment of an Advocate Commissioner is not to
collect evidence, but to elucidate matters which are local in character and it
can be done only by local investigation at the spot. Of course, the decision on
material issues can never be led to the commission which must be resolved and
decided by a Court of law. The report of the Commissioner must be a piece of
evidence in the case and does not by the Court. After all, it can be employed
for the purpose of appreciating evidence on record. A Court of law is free to
arrive at its own conclusion because of the fact that the report of an Advocate
Commissioner is not binding on it.
8. Admittedly, the revision petitioner/plaintiff has filed the suit
seeking for a relief of declaration of his exclusive title to the second
schedule land, which is part of first schedule property and for the relief of
consequential injunction restraining the defendant, his men and agents from
interfering with his enjoyment of the second schedule property exclusively and
for mandatory injunction directing the defendant to remove the gate put up on
the south-east corner of the plaintiff’s first schedule property south of the
second schedule lane etc.
9. The trial Court by its judgment dated 20.01.2005 has come to the
conclusion that the revision petitioner/plaintiff has not proved that the second
schedule property belongs to him and further that he is not in enjoyment of the
second schedule property and resultantly, dismissed the suit without costs.
10. Aggrieved against the judgment and decree of the trial Court passed in
O.S.No.189 of 2002 dated 20.01.2005, the revision petitioner/plaintiff has filed
A.S.No.119 of 2006 on the file of the learned Subordinate Judge, Tuticorin and
the same is pending as on date.
11. It is not out of place to point out that the revision
petitioner/plaintiff in his plaint in O.S.No.189 of 2002 before the trial Court
has inter alia averred that the respondent/defendant has high-handedly on
16.01.1998 put up a gate to the breath of 2 feet in the plaint second schedule
property on the southern end etc. and that the defendant has no right in the
portions of the land shown in the second schedule and therefore, the revision
petitioner/plaintiff has filed the suit for declaration of his title to the
second schedule land and for consequential injunction restraining the defendant,
his men and agents from interfering with the plaint second schedule property
exclusively and for a mandatory injunction directing the defendant to remove the
gate put up at the southern end of his second schedule property.
12. The learned Counsel for the revision petitioner brings it to the
notice of this Court that in C.R.P.No.856 of 2000, this Court has passed orders
on 24.03.2000, inter alia observing that ‘the present order will not stand in
the way either for issuance of further commission or to get supplementary
report’ and resultantly, dismissed the revision petition and this order of the
High Court, allows the revision petitioner to file the I.A.No.60 of 2008 praying
for appointment of an Advocate Commissioner to measure the petition property
referred to supra with the help of a Surveyor and therefore, the first appellate
Court is not correct in dismissing the said I.A.No.60 of 2008 for appointment of
an Advocate Commissioner.
13. Concededly, one of the issues has been framed by the trial Court to
the effect that whether plaint second schedule property belongs to the plaintiff
etc. Already the parties have let in oral evidence by examining the witnesses
P.W.1 to P.W.3 and marking Ex.P.1 to P.12 on the plaintiff’s side and on the
defendant’s side, D.W.1 and D.W.2 were examined and Exs.D.1 to D.4 have been
marked and Ex.C.1 and C.2, the Commissioner’s report and plan have been marked.
14. It is to be borne in mind that appeal is a continuation of original
proceedings, viz, that of the suit. In view of the fact that the appeal
proceedings are pending before the first appellate Court for consideration based
on the evidence and documents adduced and marked by the parties before the trial
Court, this Court is of the considered view that the revision petitioner’s
prayer for appointment of an Advocate Commissioner is only to collect evidence
and even though a Court of law has power to appoint an Advocate Commissioner
(based on the overall assessment of the facts and circumstances of the case) at
the appellate stage, this is not a fit case where this Court can accede to the
request of the revision petitioner and in that view of the matter, this Court
sitting in revision is not inclined to allow the present civil revision petition
in the interest of justice exercising its discretion and consequently, dismisses
the civil revision petition. Resultantly, the connected Miscellaneous Petition
is dismissed.
rsb
To
The Sub Judge, Tuticorin.