A. Arunachalam vs M. Thangavelu

V. Kanagaraj, J.—First defendant before the trial court is the revision petitioner herein. The above revision has been filed u/s 115 of the CPC against the fair and decretal order passed in I.A. No. 732 of 1997 in O.S. No. 863 of 1993 on the file of the Court of District Munsif, Erode dated 20.6.1997. I.A. No. 732 of 1997 had been filed by the petitioner for appointing a fresh Commissioner with a direction to inspect the suit property for noting down the physical features of the same and filing a report with annexed plan aid this petition had been dismissed by the Court below, as not on merits.

In fact, earlier a Court Commission got appointed by the Court in the same suit for the same purpose in I.A. No. 923 of 1993 on 9.6.1993 and on visiting the suit locality the said Commissioner had also filed his report with plan on 5.8.1993 for which the respondent had set in certain objections, general in nature, after a lapse of 4 months.

The said Commissioner''s report and plan have also been marked as Exhibits C-1 and C-2 in the trial Court and the trial having been commenced is now under way.

Already having appointed a Commission and on inspection the said Commissioner, ascertaining the physical features on ground had also filed the report and plan in which the petitioner herein without assigning any tangible reason or without any specific allegation against the report or attributing motives against the Commissioner, that too of late and having filed a fresh Commission petition almost at the stage of commencement of the trial in the suit, the Court below had dismissed the plea of the petitioner.

On perusal of the documents filed along with the fair and decretal order passed by the Court below, the grounds of revision and the counter affidavit of the respondent and upon hearing the arguments of Thiru. D. Saravanan, learned counsel for the petitioner and Mr. K. Kalyanasundaram, learned counsel for the respondent, this Court today delivers the following order:-

On the part of the learned counsel for the petitioner it would be vaguely contended that the Commission appointed earlier by the trial Court had not properly located the suit property and certain new items they "wanted to show to the Commissioner without specifying what they are and hence filed the said I.A. and the Court below without proper consideration had dismissed the application resulting in the above CRP having been filed.

On the contrary, the above revision would be stiffly opposed by the other side. Learned counsel for the respondent vehemently contended that the suit property which is in existence for quite a long time, till date is a foot path and the right of the respondent to make use of the same as a pathway is preserved and not at all disputed. But with intent to forming a pucca cart track and with such ulterior motives the respondent having not been satisfied with the Commissioner''s report and plan earlier submitted, and to drag on the matter without any reasonable cause nor for any justifiable reasons had filed the application before the trial Court for a fresh Commission to be issued and the same had been rightly dismissed by the trial Court and hence on the part of the respondent strong objections were raised for allowing the above revision. Since the suit is reported to be on trial proceedings, it has become necessary to dispose of the revision petition itself on merits and hence this order is passed expeditiously.

Learned counsel cited a decision reported in Vemba Gounder v. Pooncholai Gounder (1996 TLNJ 104) wherein a learned brother Judge of this Court has gone into the position of law very deep, assessing and unravelling the decisions rendered right from the beginning on the subject under Order 26, Rule 10 of CPC citing the orders delivered by this Court and other Courts right from 1929 till date of delivery of the said order. Among which the highlights are Satyanarayana Vs. T. Jalaiah, , in which had been decided following two decisions of this Court reported in Kunhi Kutti Ali v. Md. Haji (AIR 1939 Madras 73) and K.S. Ramachar v. K.S. Krishnachar (AIR 1949 Madras 612=62 L. W. 147). The learned Judge therein had deprecated the practice of appointing a second Commissioner without passing an order under Order 26, Rule 10 (3) of C.P.C. regarding the satisfaction or otherwise of the report filed by the previous Commissioner.

The above contentions have been reiterated in very many decisions of various High Courts thereafter. The learned Judge of this Court would further cite from the learned authors of the C.P.C. Volume, 1st Edition (1989) viz., S.K. Mukerjee, wherein the author had extracted a passage from the decision reported in AIR 1949 Madras 612 and has condemned the practice of appointing more than one Commissioner for the same purpose, without entering a finding as to the satisfaction or otherwise of the report filed by the first Commissioner.

The learned brother Judge would ultimately render opinion in his decision referred to supra, as follows:

"It is made clear that the dismissal of this revision petition will not bar the plaintiff/petitioner from taking appropriate steps for getting the Commissioner''s report set aside or for getting the Commission remitted to the same Commissioner, of course, subject to the satisfaction of the trial Court regarding the same, by following the procedure under Order 26, Rule 10, C.P.C".

Counsel for the respondent also cited decisions reported in Roy & Com v. Nani Bala (AIR 1979 Calcutta 50) and Mahendranath v. Purnanand (AIR 1988 Orissa 248). The first decision would contemplate that the Commissioner''s report should not be rejected except on clearly defined and sufficient grounds. The Court should not act as an expert and overrule the Commissioner''s report whose integrity and carefulness are not questioned and who did not blindly accept the assertion of either party. Latter decision would insist that local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared.

When enquired into the petitioner seems to have been aggrieved against the Commissioner''s showing alternate pathway facilitating the petitioner apart from the disputed pathway wanted to take another Commission at his initiative with no specific or good purpose to be served to develop his case or in the interests of justice.

Since neither any tangible reasons got assigned on the part of the petitioner seriously objecting to Exhibits C-1 and C-2 nor any motive attributed by the Commissioner, who was appointed and submitted report and during the time no order had been either sought for testifying the validity of Exhibits C-1 and C-2 nor had there been any order passed by the Court below nullifying those Exhibits, on specific reasons, no fresh Commission need be appointed. Hence the relief sought for by the petitioner seems to be fanciful and luxurious, which would cause hindrance to further proceedings of the case. Hence it is held that the trial Court had rightly dismissed the application filed by the petitioner in I.A. No. 732 of 1997 in O.S. No. 863 of 1993 as per its order dated 20.6.1997. In result, the above revision petition shall stand dismissed upholding the fair and decretal order passed by the learned District Munsif. Erode in I.A. No. 732 of 1997 in O.S. No. 863 of 1993 dated 20.6.1997. No costs. Consequently C.M.P. No. 10855 of 1997 is also dismissed.