IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 10.11.2009 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL CIVIL REVISION PETITION (PD) NO. 3540 OF 2009 and M.P.NO. 1 OF 2009 1.R.Chinthamani 2.R.Sivakumar ... Petitioners Vs C.Samiappan ... Respondent PRAYER: This Civil Revision Petition is filed under Article 227 of Constitution of India as against the fair and decreetal order passed in I.A.No.387 of 2009 in O.S.No.102 of 2009 dated 12.10.2009 on the file of the Principal Subordinate Judge, Gobichettypalayam. For Petitioners : Mr.P.A.Sudesh Kumar ORDER
The petitioners/respondents/Defendants 1 & 2 have filed this Civil Revision Petition as against the order dated 12.10.2009 made in I.A.No.387 of 2009 in O.S.No.109 of 2009 passed by the learned Principal Subordinate Judge, Gobichettypalayam in allowing the application filed by the respondent/petitioner/plaintiff under Order 26 Rule 9 of Code of Civil Procedure praying for appointment of Advocate Commissioner to inspect the suit property and to assess the damage made in respect of two big wells, 7.5 H.P. Motors, Electricity Connection, Bore well, 5 H.P. pumpsets, etc and to submit a detailed report in regard to the exact amount of sum sustained as damages along with the plan.
2.To avoid an avoidable delay an issuance of notice to the respondent/plaintiff is dispensed with in the interest of Justice.
3.The trial Court while passing an order in I.A.No.387 of 2009 in O.S.No.102 of 2009 dated 12.10.2009 has inter-alia observed that there is no legal defence projected in the counter and since the application has been filed praying for appointment of Advocate Commissioner to assess the damages sustained etc., in the interest of Justice, the petition is allowed and resultantly appointed Thiru.Mugundan as Advocate Commissioner fixing his remuneration of Rs.3,000/- and the Advocate Commissioner has been directed to submit his report and plan by 16.10.2009 and to avoid an unavoidable delay, this Court dispensed with the issuance of the notice in the interest of Justice.
4.According to the learned counsel for the Revision Petitioners, the order of the trial Court passed in I.A.No.387 of 2009 in O.S.No.102 of 2009, dated 12.10.2009 suffers from illegality in the sense that an Advocate Commissioner cannot be appointed by the Court of law to gather or procure evidence and moreover the order passed by the trial Court in appointing the Advocate Commissioner is not a speaking order and the Trial Court has overlooked the pleadings of the respondent/plaintiff as to the reasons assigned for the appointment of Advocate Commissioner sought for in this case that is for the purpose of recording evidence of the alleged damages, in which there is no sanction in law and further the respondent/plaintiff is trying to prove his possession through the Commissioner which cannot be countenanced in law by any means and the prayer for appointment of Advocate Commissioner is only a luxury and it is not a case of necessity and in short the order passed by the trial Court in I.A.No.387 of 2009 in O.S.No.102 of 2009 ought to be considered as non-est for the simple reason that it is a less speaking order and the application filed for the appointment of Commissioner is nothing but an abuse of process of law and unfortunately, these aspects of the matter have not been considered and appreciated by the trial Court in a proper perspective and therefore, prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice.
5.One cannot ignore an important effect that it is not a aim of Order 26 Rule 9 of the Code of Civil Procedure to assist the litigant in order to collect evidence, where the litigant himself can get the evidence. Admittedly, the application for appointment of an Advocate Commissioner cannot be allowed by a Court of law in a routine or a mechanical fashion. There is no quarrel in regard to the proposition that the appointment of the Commissioner is purely within the domain and discretion of a competent Court of law and the concerned Court is free and at liberty to exercise such power at any stage of the suit for elucidating any matter in dispute or otherwise to assess the Code in arriving at a proper conclusion.
6.As far as the present case is concerned, the respondent/plaintiff has filed I.A.No.387 of 2009 in O.S.No.102 of 2009 praying for appointment of Advocate Commissioner for the purpose of inspecting the suit property and to assess the damages in regard to (1) two big wells (2) one deep bore well (3) 7.5 H.P. Motors (4) Pumpsets along with 5 H.P. Motors, together with pumpsets with two Electricity Connections, Starter Switch, Double throw switch, Meter, etc., and also the damages of plantain crops, coconut crops, ground pipe line, cable wire on the surface of the land, Drip irrigation wires, damage to 20 plantain trees, two coconut trees, etc.
7.In the counter filed by the second Revision Petitioner/Second defendant before the Trial Court it is stated among other things that both the parties are in joint possession of the suit properties and based on the false complaint which has been prepared by legal brain with an intent to vacate the respondents from the suit properties, the plaintiff has filed Civil and Criminal cases and even in the Criminal Case documents shows the joint possession of the respondents in the suit properties and the commissioner cannot decide the possession and enjoyment and recently the respondent/plaintiff and his henchmen destroyed the respondent’s house and they assaulted them. To this effect a complaint has been lodged before the concerned Police Station and with an intent to collect evidence the application for an Advocate Commissioner has been filed, which is not sustainable in the eye of law and therefore, prayed for dismissal of the application.
8.This Court heard the learned counsel for the petitioners/defendants appearing for the parties and noticed contentions.
9.It is to be noted that the report of the Commissioner can only be an aid to the trial Court in arriving at its findings and per se a commissioner’s report is not an evidence in the consider opinion of this Court. As a matter of fact, the report of the Commissioner is a part of Record and it cannot be rejected merely because commissioner has not been examined.
10.On going through Paragraph 5 of the Order passed by the Trial Court in I.A.No.387 of 2009 in O.S.No.102 of 2009, it is clear that even though the said order is not a detailed one, yet the Court has applied its mind and come to the conclusion that in the interest of Justice, the application for appointment of Advocate Commissioner has to be allowed and accordingly, has allowed and appointed Thiru.Mugundan, Advocate as Commissioner and fixed his remuneration to inspect the suit properties and to value the damages sustained to the crops and other properties. The same will not cause prejudice to either parties and at first, when the commissioner submits a report to the trial Court, then the same will have to be considered by the trial Court along with other evidence available in the case on record in order to resolve the disputes/controversies involved in the Suit, so that the same can be given a quietus in a complete and comprehensive manner and viewed in that perspective, this Court is of the considered view that the order of the trial Court in appointing an Advocate Commissioner in I.A.No.387 of 2009 is not an arbitrary, whimsical, fanciful and capricious one. On the other hand, the same is ordered based on the facts and circumstances of the case in an integral fashion and looking at from any angle this Civil Revision Petition fails.
In the result, this Civil Revision Petition is dismissed leaving the parties to bear their own cost. The order passed by the Trial Court in I.A.No.387 of 2009 is affirmed by this Court for the reasons ascribed in the revision. Considering the facts and circumstances of the case, there shall be no order as to costs.
mps
To
The Principal Subordinate Judge,
Gobichettypalayam