BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/09/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.839 of 2009 MP.No.1 of 2009 R.Justin Arulappa ... Petitioner Vs 1. R.Xavier Arulappa 2. Gerayana Rani ... Respondents Prayer This Civil Revision Petition is filed against the order dated 21.4.2009 made in IA.No.98/2009 in OS.No.54/2009 on the file of the II Additional Sub Judge, Nagercoil. !For Petitioner ... Mr.T.Selvakumar ^For Respondent ... Mr.R.JOseph Thankaran-R1 Mr.C.Sankar Prakash-R2 :ORDER
This Civil Revision Petition is filed by the 1st defendant against
the order dated 21.4.2009 passed in IA.No.98/2009 in OS.No.54/2009 by the
learned II Additional Sub Judge, Nagercoil.
2. The 1st respondent/plaintiff has filed the above said suit for
declaration of plaintiff’s title and recovery of possession of the plaint
schedule property from the defendants and to direct the 1st defendant to pay the
arrears of licence amount of Rs.90,000/- for the usage of the schedule mentioned
property with 12% interest per annum. Pending the suit, the 1st respondent has
filed the said application for issuance of commission for local investigation
of the schedule mentioned property in relation to certain points stated by the
1st respondent in the said application. The allegations made by the 1st
respondent is that the petitioner has annexed certain portion of land with the
property of the petitioner on the western side and issuance of commission is
filed to segregate the annexed portion from the petitioner’s possession and for
mesne profits for the usage of the disputed portion.
3. Strangely, though the court below has observed in its order that
a commission cannot be issued to separate the schedule mentioned property, to
assess the mesne profits and to fix the rent for the building, however, it
appointed an Advocate Commissioner for the purposes as required by the 1st
respondent. Admittedly, the appointment of the Advocate Commissioner was
without even notice to the petitioner. Though it is not obligatory on the court
to issue notice to the other side before issuing commission, but natural justice
requires that such an order should not be passed without notice to one of the
parties.
4. In case of this nature, where the dispute between the parties
relates to the determination of question of encroachment made by the other
party, it is necessary that the other party should be given notice and allow
him to put forth his defence before issuing a commission to visit the suit
property and to make even the local investigation. It is rightly pointed out by
the learned counsel for the petitioner that the appointment of an Advocate
Commissioner cannot be utilized for the purpose of gathering or collecting
evidence by other party in any proceedings.
5. The learned counsel for the petitioner placed reliance on the
judgement of the Division Bench of this court rendered in the case of
K.Mariappan and five others Vs. Chennaivazh Nadrgal Sangam and three others
[1996-I-CTC-148] and contended that there cannot be a commission for noting down
the physical features as set out in the petition filed by the 1st respondent in
his petition and the Advocate Commissioner cannot divide the property and there
is no necessity or justification to appoint an Advocate Commissioner for the
said purpose.
6. The points to be noted by the Advocate Commissioner have been
stated in the petition filed by the 1st respondent, which is extracted below for
easy reference:-
“1. To identify and separate the schedule property from the I defendant property
on the western side with the assistance of Taluk Surveyor, Agasteeswaram Taluk
at Nagercoil.
2. To note the natue of the building in the schedule property and the business
conducted there in and to assess the mesne profits for the building in usage.
3. To note the incumbents in the building in the schedule property and their
utilisation of the said building.
4. To fix the rent of the building through the assistance of Assistant Engineer,
PWD (Building) at Nagercoil.
5. To note such other points as the plaintiff requires at the time of commission
visit.”
The above said features cannot be noted down by the Advocate Commissioner, as it
would amount to collection of evidence in favour of one party.
7. This court in the case of Rangasamy Vs. The Superintending
Engineer, TNEB, Mettur Electricity System, Mettur Dam, Salem District and others
[2006-5-CTC-501] has held that the object of the local investigation under Order
26 Rule 9 of CPC is not to collect evidence and the court should not appoint an
Advocate Commissioner for taking measurement of the suit property in a
mechanical manner without considering the need for such an appointment.
8. In yet another decision reported in the case of S.Palanisamy
Gounder Vs. N.Palanisamy and three others [2007-1-CTC-611], this court has
observed that though the said local investigation by the Advocate Commissioner
can be done at the earlier stage of litigation regarding identification,
location and measurement of land or premises, the report can be used as a
guiding factor in the process of decision making and not to be used as a basis
of decision making.
9. In the instant case, the court below has not even chosen to give
a prima facie finding for the purpose of issuance of commission without notice
to the other party. The need to have resorted to Order 26 Rule 9 of CPC ought
to be felt by the court for the purpose of elucidating certain details and it
cannot mechanically appoint an Advocate Commissioner without focussing attention
as to what are the questions of dispute and whether for deciding the disputed
question the appointment was necessary. But, in this case, utter disregard to
the above said principles, the court below had appointed an Advocate
Commissioner to make local investigation as requested by the 1st respondent
without even considering whether such issuance of commission is warranted at
this stage.
10. Therefore, I have no hesitation to hold that the impugned
order of the court below is improper and suffers from illegality. In the event
of a local investigation being made by the Advocate Commissioner pursuant to the
issuance of such a commission, then the said report will be regarded as
inadmissible and non est.
11. For the reasons aforesaid, the impugned order passed by the
court below is liable to be set aside and accordingly, it is set aside and this
Civil Revision Petition is allowed. No costs. Consequently, the connected MP is
closed.
Srcm
To:
The II Additional Sub Judge, Nagercoil