{"id":232495,"date":"2011-08-02T00:00:00","date_gmt":"2011-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-nachiappan-vs-a-nachiappan-on-2-august-2011"},"modified":"2018-06-12T19:59:13","modified_gmt":"2018-06-12T14:29:13","slug":"m-nachiappan-vs-a-nachiappan-on-2-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-nachiappan-vs-a-nachiappan-on-2-august-2011","title":{"rendered":"M.Nachiappan vs A.Nachiappan on 2 August, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
M.Nachiappan vs A.Nachiappan on 2 August, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 02\/08\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE C.S.KARNAN\n\nC.R.P(PD)(MD)No.204 of 2010\nand\nM.P(MD)No.1 of 2010\n\n1.M.Nachiappan\n2.V.Asokan\n\t\t\t\t..Petitioners\/Respondent\/Defendants\n\nVs\t\t\n\n1.A.Nachiappan\n2.A.Marthandam\n3.T.Nachal @ Revathi\n4.V.Nachiappan\n5.V.Radhalakshmi\n\n\t\t\t\t..Respondents\/ Petitioners \/ Plaintiffs\n\nPRAYER\n\nCivil Revision Petition filed under Article 227 of the Constitution of\nIndia to set aside the fair and decretal order passed on 04.12.2009 in\nI.A.No.447 of 2009 in O.S.No.177 of 2007 on the file of the Additional District\nMunsif Court, Karaikudi.\n\t\t\t\t\t\n!For Petitioners      ... Mr.T.S.Mohamed Mohideen\t\n^For Respondents      ... Mr.T.V.Sivakumar for\n\t\t\t  Mr.B.Muruganandham\t\n\n:ORDER\n<\/pre>\n
\tThis petition has been filed by the petitioners\/defendants to set aside
\nthe fair and decretal order passed on 04.12.2009 in I.A.No.447 of 2009 in
\nO.S.No.177 of 2007 on the file of the Additional District Munsif Court,
\nKaraikudi.\n<\/p>\n
\t2.The short facts of the case are as follows:-\n<\/p>\n
\tThe respondents\/plaintiffs have filed a suit in O.S.No.177 of 2007 on the
\nfile of the District Munsif Court, Karaikudi against the revision petitioners \/
\ndefendants for declaration and injunction stating that the ‘A’ Schedule property
\nbelongs to the 1st plaintiff and that his peaceful possession would not be
\ndisturbed.  The ‘B’ schedule property belongs to the 2nd plaintiff.  As such,
\nthe 2nd plaintiff seeks a declaration and injunction restraining the defendants.
\nThe 3rd plaintiff seeks injunction and declaration restraining the defendants
\nfrom interfering with his peaceful possession and other relief.  The said suit
\nhas been resisted by the defendant and written statement has also been filed.\n<\/p>\n
\t3.The plaintiffs have filed an interlocutory application in I.A.No.83 of
\n2009 to appoint an advocate commissioner for inspection of the suit property in
\norder to prove the plaintiffs possession and enjoyment and extent of land
\npossessed by them.  The said application for appointment of Advocate
\nCommissioner was opposed by the defendants, who had filed counter statements.
\nThe learned Judge, after hearing the arguments of the learned counsel on both
\nsides and on scrutiny of the averments on both the sides, dismissed the said
\napplication.\n<\/p>\n
\t4.Thereafter, the plaintiffs have filed another application in I.A.No.447
\nof 2009 in O.S.No.177 of 2009 with the same prayer of appointment of Advocate
\nCommissioner.  This application was also opposed by the defendants, who filed
\ncounter statement.  The learned Judge, after considering the arguments advanced
\nby the learned counsels of both the parties, and after considering the averments
\nof both parties appointed an advocate commissioner, who was directed to inspect
\nthe petition mentioned property with the help of a Taluk Surveyor and to measure
\nthe suit property and to note down the physical features.\n<\/p>\n
\t5.Against the said order, the revision petitioners \/defendants have filed
\nthe above revision petition to set aside the order and decretal order passed in
\nI.A.No.447 of 2009 in O.S.No.177 of 2007 on the file of the Additional District
\nMunsif Court, Karaikudi.  The learned counsel for the revision petitioner argued
\nthat  no petition under Order 26 Rule 9 can be maintained to fix the possession
\nof property and that the failure of possession cannot be decided by appointing a
\ncommissioner.  It was also pointed out that when an earlier application for
\nappointment of commissioner was dismissed, allowing the subsequent application
\nwhich has the same literal meaning is unsustainable.  It was also argued that
\nthe mere apprehension that the defendant may encroach upon the suit property
\ncannot be a ground to allow a petition under Order 26 Rule 9.  The learned
\ncounsel has also argued that the property has been described by the plaintiffs
\nand it any dispute arise, if can be settled by letting evidence.  As such the
\naim of the plaintiff to locate the possession has not been looked clearly by the
\nlower court.  The learned counsel for the revision petitioner further argued
\nthat the plaintiffs have filed the 2nd application for appointment of advocate
\ncommissioner, on the same purpose, with the intention of dragging on the
\nproceedings.\n<\/p>\n
\t6.The learned counsel for the respondents argued that if the advocate
\ncommissioner inspects the property and notes down the physical features of the
\nproperty with the help of a Taluk Surveyor, the interest of the revision
\npetitioners would not be prejudiced.  There is no necessity to drag on the suit
\nproceedings since the respondents\/plaintiffs have sought relief against the
\nrevision petitioners \/ defendants.  The 2nd application for appointment of
\nadvocate commissioner has been done with the view to determine the physical
\nfeature of the property.\n<\/p>\n
\t7.In support of this case, he cited a judgment in the case of
\nMangayarakarasi Ammal  Vs. Nagammal  reported in 2009(5) CTC 444.   The relevant
\nportion of  this Judgment reads as follows:-\n<\/p>\n
\t“Code of Civil Procedure, 1908 (5 of 1908), Section 11 and Order 26, Rule
\n9 – Res judicata – Whether earlier dismissal of Interlocutory Application would
\noperate as res judicata – Respondents filed Application for appointment of
\nAdvocate Commissioner to ascertain market value of suit property – Trial Court
\ndismissed Petition on ground that no issue framed regarding valuation of suit
\nproperty –  Subsequently additional issue framed as to whether said Court has
\npecuniary jurisdiction – Respondents filed second Application for appointment of
\nAdvocate Commissioner to ascertain market value of suit property which was
\nallowed – Whether similar Petition is maintainable for same purpose when earlier
\nApplication is dismissed – Held : Second Application for same relief is
\nmaintainable as it has not been decided finally and conclusively in earlier
\nApplication – Pandurag Ramachandra Mandlik and another V. Shanta Bai Ramachandra
\nGhatge and others, AIR 1989 SC 2240 and U.P.E. Supply Co. V. T.N.Chatterjee, AIR<\/a>
\n1972 SC 1201, followed.”\n<\/p>\n
\t8.In another Judgment in the case of A.Nagarajan vs. A.Madhanakumar<\/a>
\nreported in 1996(1) CTC 229.  The relevant portion of this Judgment reads as
\nfollows:-\n<\/p>\n
\t“Code of Civil Procedure 1908, Order 26, Rule 9 – Appointment of
\nCommissioner in Rent Control Proceedings – Stage of Appointment of Commissioner\n<\/p>\n
– Power of Court. Rent Controller appointed a Civil Engineer as Commissioner to
\nsubmit report with plan – Application was moved during trial – Civil Revision
\nPetition under Article 226 challenging order appointing commissioner was
\ndismissed – Validity of such order appointing commissioner can be challenged in
\nappeal preferred against final order and not by invoking extraordinary
\njurisdiction under Art.227 of the Constitution of India.”\n<\/p>\n
\t4.The main dispute now revolves round the point is at what stage and when
\na commissioner can be appointed by the Court?\n<\/p>\n
 Rules 9 of Order 26, C.P.C. Contemplates in any proceeding, in which the Court
\nis of the opinion that local investigation is requisite or proper for the
\npurpose of elucidating any matter in dispute it may issue a commission to such
\nperson as if think fit direct him to make such investigation and to report
\nthereon to the Court (Italic is mine).  Such report shall form part of the
\nrecord.  But the Court or with the permission of the Court, any of the parties
\nto the proceeding may examine the Commissioner in open court touching any of the
\nmatters referred to him or mentioned in his report as to the manner in which he
\nhas made the investigation.  Whether the court is, for any reason, dissatisfied
\nwith the report, it may direct further enquiry to be made as it shall think fit.
\nThe purpose of local investigation is ascertaining, collecting or elucidating
\nfacts in respect of any matter in dispute after proper scrutiny of examination
\nand sifting of materials.  Elucidate according to Websters Dictionary means “to
\nmake light or clear, to explain, to remove obscurity from and render
\nintelligible, to illustrate “.  According to Chambers Dictionary, elucidate
\nmeans to make lucid or clear or to through light upon, to illustrate, making
\nclear, explanatory”.  According to the Oxford Dictionary, ” elucidate means to
\nthrow light on, explain” etc.<\/p>\n
\t5.For the purpose of elucidating facts in respect of any matter in dispute
\nmeans where the circumstances render it expedient in the interest of justice to
\ndo so, the Court has power, which is discretionary in nature, to appoint
\nCommissioner for the purpose of ascertaining, to make it clear, intelligible and
\nto throw light upon the matter in issue, means the main dispute as well as the
\nfacts leading to the dispute.  The course may be adopted after the examination
\nof the party or parties of suo motu.  If the courts feels that clarification or
\nconfirmation is necessary on certain aspects on which the Court entertains doubt
\nin the matter in issue or dispute, or the disputed questions of fat, for the
\npurpose, of ascertaining, clarification, or for proper scrutiny and examination,
\nthis course can be restored to.  In P.Moosa Kutty, in re AIR 1953 Madras 632,
\nthis Court has held in any even, an application under this rule must be made
\nbefore the case is closed.  In this view of the matter, appointment of  a
\ncommissioner can be restored to after the evidence of the respective parties
\nbeing placed.  In Ponnusamy vs.  Salem Vaiyappamalai Jangamar Sangam AIR 1986
\nMadras 33, this court has taken the view that the party has got a right to place
\nevidence which he could require to substantiate his case before the court and,
\nof course, subject to the law of evidence and the code, and it is the duty of
\nthe court to receive such evidence, unless there are other justifiable factors
\nin law to decline to receive such evidence.  The evidence so collected through
\nthe Commissioner may be used to elucidate a point which may otherwise be left in
\ndoubt or ambiguity on record.  The Commissioner in effect is a projection of the
\nCourt appointed for a particular purpose.”\n<\/p>\n
\t“10.It is well settled that Article 227 of the Constitution can be invoked
\nonly in the following circumstances, namely, when there is lack of jurisdiction,
\nerroneous assumption of jurisdiction of excess of jurisdiction of where there is
\ngross dereliction of duty, flagrant violation of law, error of law apparent on
\nface of the record or where there is violation of principles of natural justice
\nand finding is based on no material or whatever which is by very nature
\narbitrary or capricious.  The power conferred on the court to appoint a
\ncommissioner for local inspection is for better appreciation of the evidence
\nalready on record.  The trial court had the jurisdiction to decide under what
\ncircumstances it can appoint a Commissioner.  The Commissioner so appointed is
\nnot performing a judicial act and it is a “ministerial Act”.  Nothing is left to
\ndiscretion and there is no occasion to use judgment or adjudicate the issue
\ninvolved but only noting the details and reporting the actual state of affairs.
\nSuch report does not automatically form part of evidence in the proceeding and
\nthe court has power to confirm, vary or set aside the report or issue a new
\ncommission.  Hence there is neither abdication nor delegation of the powers of
\nfunctions of the Court to decide the issue. Only an examination of the
\nCommissioner, the report forms part of the record and evidence.  The opposite
\nparty has opportunity to cross-examine the Commissioner.    Of course, failure
\nto do so to elicit such information as it required, cannot at later stage object
\nto the report being accepted on the ground Commissioner not examined or cross
\nexamined.  The contention of the learned counsel that the impugned order is per
\nsee illegal, unsustainable and amounts to delegating the functions of the Court
\nto decide the issue are misconceived and hence rejected.  The act of appointing
\na commissioner cannot be termed as one without jurisdiction.”\n<\/p>\n
\t“………Learned Judge ought to have allowed the respondent-petitioner to
\ncomplete his side of the evidence and then resorted to this course of appointing
\na Commissioner, if so advised.  As has been held by this Court in Sangili V.
\nMookan I.L.R<\/a> . 16 Madras 350, the word elucidation presupposes the existence of
\nsome independent evidence on record.  It is  reasonable to resort to the
\nappointment of a Commissioner after placing evidence by the respective parties.
\nWith respect, I differ from the view expressed in Johan v. Kamarunnissa AIR,
\n1989 Kerala 78.  Thus, I answer the point that Commissioner can be appointed
\nafter closure of his side of evidence by a party for the purpose of
\nclarification, explanation and proof of the matter in issue or a fact which
\nrequires elucidation.  I see no reason to quash the impugned order, but however,
\nI direct the learned Judge to complete the evidence of the respondent who is the
\npetitioner in R.C.O.P. and then give effect to the order impugned. ”\n<\/p>\n
\t9.In another Judgment in the case of ponnusamy  vs. Salem Vaiyappamalai
\njangamar Sangam reported in AIR 1986 Madras 33.  The relevant portion of this
\nJudgment reads as follows:-\n<\/p>\n
\t“9. Coming to the question as to whether, on the basis that the order
\npassed by the Court below is a case decide, there is a warrant for interference
\nwithin the meaning of S.115 of the Code, I find that it is so.  A controversy,
\nas we could see from the pleadings, has arisen as to whether the constructions
\nput up by the third defendant are within his land or whether they have
\nencroached into the lands of the plaintiff.  A local investigation is the best
\nway to find out the position and the party, namely, the third defendant’
\ncoveting to place the evidence before the court through  local investigation by
\nthe Commissioner cannot be shut out of that right.  A misconception has weighed
\nin the mind of the Court below when it reasoned that there is no dispute about
\nthe ownership of S.No.289\/1 by the third defendant.  That is not the point in
\nissue.  Shutting out the evidence which a party is entitled to place before
\nCourt to substantiate his case, definitely decides that right of the party,
\nadversely against him and in this view, the order passed by the Court below is a
\n‘case decided’ and apart from that, on merits the order passed by the Court
\nbelow comes within the mischief of the ratio adumbrated in S.115 of the Code.
\nThere has been a failure to exercise jurisdiction vested in it by the Court
\nbelow to a patent misconception of the position and this obliges me to interfere
\nin revision.”\n<\/p>\n
\t10.In another Judgment in the case of Saraswathy  vs. Viswanathan<\/a> reported
\nin 2002(2) CTC 199.  The relevant portion of this Judgment reads as follows:-\n<\/p>\n
\t“Code of Civil Procedure, 1908 Order 26, Rule 9 – Appointment of Advocate
\nCommissioners – Grounds for –  In suit for permanent injunction restraining
\ndefendant from interfering with plaintiffs easmentary right  and light and air
\nto suit property – Plaintiff sought appointment of Advocate Commissioner to
\nvisit suit property and note down physical features of suit property including
\nage and stage of new construction in suit property – Absence of dispute with
\nregard to identity of property does not disentitle party to seek appointment of
\nAdvocate Commissioner – Advocate Commissioner could be appointed and directed to
\nnote physical feature of property and verify whether construction put up is in
\naccordance with sanctioned plan – Object of appointment of Commissioner is not
\nto collect evidence but to elucidate matters which are local in character and
\nwhich can be done only by local investigation at spot – Commissioner cannot
\ndecide dispute but his report would help Court in deciding dispute – No
\nprejudice is caused to other side by appointing Advocate Commissioner – Order of
\ntrial Court refusing to appoint set aside and trial Court directed to appoint
\nAdvocate Commissioner – .”\n<\/p>\n
\t11.In the facts and circumstances of the case and at the hearing of
\narguments advanced by the learned counsel on both sides and on perusal of the
\norder of appointment of Advocate Commissioner passed in I.A.No.447 of 2009 in
\nO.S.No.177 of 2007 on the file of the Additional District Munsif Court,
\nKaraikudi, this Court is of the considered opinion that (1) The appointment of
\nadvocate commissioner has been done not with a view for favouring either of the
\nparties but has been done to get more clarity and insight into the said suit
\nproperty to render proper verdict to the parties concerned.  (2) The expenditure
\nincurred for utilising the service of advocate commissioner will be borne by the
\npetitioner, who has sought for appointment of advocate commissioner (3) The mere
\nappointment of advocate commissioner will not be prejudicial to the interest of
\nthe revision petitioners\/defendants, as he has been appointed only for the
\npurpose of determining the actual possession of the property.  Considering the
\nabove mentioned aspects, the order passed by the learned Judge in I.A.No.447 of
\n2009 in O.S.No.177 of 2007 is found to be fair in the circumstances of the case.\n<\/p>\n
\t12.Resultantly, the above civil revision petition is dismissed.
\nConsequently, the order and decretal order passed in I.A.No.447 of 2009 in
\nO.S.No.177 of 2007 on the file of the Additional District Munsif Court,
\nKaraikudi is confirmed.  Connected miscellaneous petition is closed.  This court
\nfurther directs the learned Judge to dispose the case within a period of six
\nmonths, without being influenced by the discussion of this court.  Accordingly
\nordered.  There is no order as to costs.\n<\/p>\n
skn<\/p>\n
To
\nThe Additional District Munsif,
\nKaraikudi.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M.Nachiappan vs A.Nachiappan on 2 August, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02\/08\/2011 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.R.P(PD)(MD)No.204 of 2010 and M.P(MD)No.1 of 2010 1.M.Nachiappan 2.V.Asokan ..Petitioners\/Respondent\/Defendants Vs 1.A.Nachiappan 2.A.Marthandam 3.T.Nachal @ Revathi 4.V.Nachiappan 5.V.Radhalakshmi ..Respondents\/ Petitioners \/ Plaintiffs PRAYER Civil Revision Petition filed under Article 227 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-232495","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM.Nachiappan vs A.Nachiappan on 2 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-nachiappan-vs-a-nachiappan-on-2-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Nachiappan vs A.Nachiappan on 2 August, 2011 - 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