IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:01.12.2009
CORAM:
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.(NPD).No.3810 of 2009
and
M.P.No.1 of 2009
1. Sampath
2. Anbu ... Petitioners/Appellants
Vs.
Gopal Naidu ... Respondent/Respondent
. . .
Prayer: Petition filed under Article 227 of the Constitution of India against the order dated 17.04.2009 made in I.A.No.17 of 2009 in A.S.No.44 of 2008 by the learned Subordinate Judge,Tiruvallur in dismissing the dismissing the application filed by the Revision Petitioners under Order 26 Rule 9 of Civil Procedure Code praying for appointment of an Advocate Commissioner along with Taluk Head Surveyor to inspect and survey the S.No.334/2 and fix the 'F' line and report be the Court.
. . .
For Petitioner : Mr. M.V.Muraliidaran
. . .
O R D E R
The petitioners/Appellants/Defendants have projected this Civil Revision petition as against the order 17.04.2009 made in I.A.No.17 of 2009 in A.S.No.44 of 2008 by the learned Subordinate Judge, Tiruvallur in dismissing the application filed by the Revision Petitioners under Order 26 Rule 9 of Civil Procedure Code praying for appointment of an Advocate Commissioner along with Taluk Head Surveyor to inspect and survey the S.No.334/2 and fix the ‘F’ line and report before the Court.
2. To avoid an avoidable delay, this Court dispenses with the issuance of notice to the respondent in furtherance of substantial cause of justice.
3. The first Appellate Authority, namely, Subordinate Judge,Tiruvallur while passing orders in I.A.No.17 of 2009 has inter alia opined that whether the hut and fence have been put up in road poramboke thereby affecting the right of the respondent/plaintiff will have to be gone into at the time of deciding the appeal and also that the application has been filed not with bona fide reasons and even if the application praying for appointment of an Advocate Commissioner is allowed, the same will not be of any assistance while rendering the judgment by the Court and resultantly, dismissed the application, without cost.
4. According to the learned counsel for the Revision Petitioners/Appellants/Defendants, the impugned order passed by the learned Subordinate Judge in I.A.No.17 of 2009 dated 17.04.2009 is contrary to law and probabilities of the facts and as a matter of fact, the first appellate Authority has failed to appreciate that the petitioners have put up the hut in the poramboke land and therefore, I.A.No.17 of 2009 ought to have been allowed by the first appellate Authority and it is very difficult to decide A.S.No.44 of 2009 without finding out the fact whether the Revision petitioners have put up hut in S.No.346/1 or in Government Poramboke land and even otherwise, the Government alone is having the right of possession of the land of the petitioners and added further, the balance of convenience is in favour of the Revision petitioners, but unfortunately, these material aspects of the matter have not been looked into or adverted to by the Learned Appellate Authority in a proper perspective, which has resulted in miscarriage of justice and therefore, prays for allowing of the miscellaneous petition in the interest of justice.
4. Revision petitioners/Appellants/Defendants in their affidavit filed in support of I.A.No.17 of 2009, have inter alia averred that the first petitioner has put up a hut over S.No.334, poramboke land and the respondent/plaintiff has filed a suit for declaration and injunction and in that suit, he has filed an application praying for appointment of an Advocate Commissioner along with Taluk Head Surveyor and though the said application has been allowed, he is unable to get the Taluk Head Surveyor to measure the property. The Government Surveyor has surveyed the property and states that the respondent is living in S.No.334/2 and therefore, the Revision petitioner has filed the present miscellaneous petition for appointment of an Advocate Commissioner along with Taluk Head Surveyor to inspect and survey the S.No.334/2 and to report before the Court.
5. In the counter filed by the respondent/plaintiff, it is mentioned that the evidence of the appellant is clear that they have put up the fence and hut in between the plaintiffs’ property and Viday 1st road, thereby the lower Court has given a finding in regard to the right of access and any amount of Survey Report cannot improve the stand taken by the defendants and therefore, has prayed for dismissal of the application with costs.
6. It is to be noted that the object of Order 26 Rule 9 C.P.C is not to assist a party to collect evidence where the party himself can procure or gather evidence in a given case. Admittedly, in a Civil Suit the plaintiff is dominus litus. The appointment of an Advocate Commissioner is within the domain and discretionary power of a Court of Law for elucidating any matter in dispute/controversy. However, the said power has to be exercised by a Court of law based on judiciary principles.
7. In the present case on hand, before the trial Court, the Revision petitioners/Appellants have taken out an application praying for appointment of an Advocate Commissioner and an Advocate Commissioner has been appointed by the Court and he has also submitted his report. In the suit filed by the respondent/plaintiff, a decree has been passed declaring that the respondent/plaintiff has right of an uninterrupted access to Vidayar Road from the suit property and also that the Revision petitioners/Appellants, their men etc. have been restrained from putting up compound wall or pucca house in the encroached portion and also the Revision petitioners/Appellants, their men have been directed to remove the hut and fencing put up by them touching the northern limit of the suit item and two months’ time has been granted by the lower Court to remove the hut and fencing. As against the said judgment and decree made in O.S.No.186 of 1996 by the lower Court, the Revision petitioners as appellants have preferred an appeal in A.S.No.445 of 2008 before the learned Subordinate Judge, Tiruvallur and as on date the same is pending. During the appeal stage, when the matter is pending, the Revision Petitioners have taken out an application in I.A.N o.17 of 2009 praying for appointment of an Advocate Commissioner along with Taluk Head Surveyor to inspect and survey the S.No.334/2 and fix the ‘F’ line and file his report before the Court.
8. It is an axiomatic fact in law that an appeal is a continuation of original proceedings and as per Section 47 of C.P.C an appellate Court shall have all the powers of the trial Court. It is brought to the notice of this court that when the appeal has been posted for hearing arguments, at that time, the present application I.A.No.17 of 2009 has been filed by the Revision Petitioners before the learned first appellate authority praying for appointment of an advocate commissioner to inspect S.No.334/2 and fix ‘F’ line and submit his detailed report.
9. On a careful consideration of the respective contentions and when the appeal is ripe for hearing and final disposal, this court is of the considered view that the present application in I.A.No.17 of 2009 filed by the Revision petitioners praying for appointment of an Advocate Commissioner etc. is not a case of necessity and in fact the said application is a supernumerary and a surplusage one and the same has been projected mainly with a view to indulge in fishing expedition or with a view to make a roving enquiry into the matter and that the first appellate Court can as well deal with the present appeal based on the available oral or documentary evidence on record and this is not a case where without the report of the Advocate Commissioner, the first Appellate Authority is not in a position to deal with the case, and in short, the application projected by the Revision petitioners praying for appointment of an Advocate Commissioner is only a otiose one and resultantly, the Revision fails.
M.VENUGOPAL,J.
pal
10. In the result, the Civil Revision petition is dismissed without costs.
Index:Yes/ 01.12.2009
Internet: Yes
pal
To
The Subordinate Judge,
Tiruvallur.
C.R.P.(NPD) No.3810 of 2009
Dt. 01.12.2009