S.Malayandi vs Karuppaiah on 29 July, 2009

Madras High Court
S.Malayandi vs Karuppaiah on 29 July, 2009




DATED: 29/07/2009


C.R.P.(PD).No.2182 of 2008
M.P.(MD).No.1 0f 2008

S.Malayandi				...petitioner


Karuppaiah				...Respondent


This Civil Revision Petition has been filed under Article 227 of
Constitution of India against the fair and decretal order dated 14.08.2008 made
in I.A.No.382 of 2008 in O.S.No.215 of 2007 on the file of the District Munsif,

!For Petitioner   ... Mr.D.Parisuthanathan
^For Respondent   ... Mr.P.Ganapathy Subramanian


The revision has been filed by the plaintiff in the suit, challenging the
order passed in I.A.No.382 of 2008, wherein the court below has appointed a
Commissioner to note down the physical features of the suit property at the
instigation of the first defendant in the suit.

2.The suit has been filed by the petitioner in O.S.No. 215 of 2007, on the
file of District Munsif, Pudukottai for specific performance. Pending the suit,
an application in I.A.No.382 of 2008, has been filed by the defendant, claiming
that in order to establish the suit property for cultivation, an appointment of
Commissioner is necessary. Accordingly, the Commissioner was appointed and he
has also file a report. Challenging the same, the revision has been filed.

3.As rightly contended by the petitioner, the court below ought not to
have appointed a Commissioner to note down the physical features at the trial
stage and at the instance of the defendant in a suit filed by the plaintiff,
seeking a relief for specific performance. Further, a reading of the affidavit
filing in support of the petition in I.A.No.382 of 2008, would show that the
defendant is certainly trying to collect the evidence. The order passed by the
Court below is also not based upon any legal principle. The learned counsel
relied upon a judgment reported in 2008(3) CTC 597 in K.M.A.Wahab and five
others vs. Eswaran and another, in support of his case that a party cannot be
allowed to seek an appointment of Commissioner to collect evidence. The learned
counsel also relied upon a judgment reported in (2009) 2 MLJ 769 in Ambrose and
another vs. Neelamegam, wherein, the Hon’ble High Court has held that an
appointment of Commissioner in a suit for specific performance is not necessary
to value the property.

4.The present case on hand, unfortunately, the Commissioner has visited
the suit property and filed his report. The Commissioner’s report is nothing but
a peace of evidence and it is for the court to appreciate the value of the
Commissioner’s report. Even though, in a suit for specific performance the
report of the Commissioner is not necessary. In view of the fact that the
Commissioner has already filed a report, this court is of the opinion that the
revision deserves to be dismissed.

5.However, it is made clear that the Court below shall not look into the
Commissioner’s report unless, the court feels that the same is required for the
purpose of deciding the issues raised in the suit. With this observations, the
revision is disposed of.

6.The trial court is directed to dispose of O.S.No.215 of 2007, pending on
the file of District Munsif, Pudukottai within a period of six months from the
date of receipt of a copy of this order. No costs. Consequently, the connected
M.P is also closed.


The District Munsif,

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