G. Manoharan vs A. Rajeswari

S. Palanivelu, J.—The petitioner is the defendant in O.S. No. 168 of 2002 on the file of the District Munsif Court, Srivilliputhur. The respondent filed a suit for permanent injunction and also for mandatory injunction. The suit was decreed in favour of the respondent and the petitioner carried the matter on appeal in A.S. No. 34 of 2006 on file of the Subordinate Court, Srivilliputhur. Pending hearing of the appeal, this petitioner filed an application under Order 26, Rule 9, C.P.C. for appointment of an Advocate Commissioner to measure the first Schedule property namely, the lane as well as the houses belonging to both parties.

In the affidavit, he has stated that the trial Court appointed an Advocate Commissioner and at the time of his inspection on 21.06.2002, he requested him to measure the walls of the houses belonging to both parties but the Advocate Commissioner refused to do the same. In addition to this, he has not mentioned anything about the boundaries or measurements in his report. Only when the measurements of houses of both parties are taken, the fact as to whether the first Schedule property is a common lane or a private lane, can be ascertained.

The petition was resisted by the respondent by stating that there is no need to measure the properties belonging to both parties and Exs. A.2, A.3 & A.10 are enough to decide the measurements of the properties.

The learned Subordinate Judge, Srivilliputhur, dismissed the application by observing that the petitioner has already filed his objections to the Advocate Commissioner''s report before the trial Court.

Even though the petitioner filed objections to the Advocate Commissioner''s report before the trial Court, he had not taken any steps to file an application to re-issue of Advocate Commissioner''s warrant. After the delay of six years, he has come forward with this application. The Advocate Commissioner inspected the suit property in the year 2002 and only in the year 2007 he has filed this application. The petitioner has not produced any title deeds before the Court below and on the strength of Exhibits marked on the side of the respondents namely, Exs. A.2, A.3 & A.10, the trial Court has decided the issue.

The learned Counsel for the respondent would submit that since the burden of proof is on the plaintiff namely, this respondent, he has already established his rights before the trial Court by production of relevant documents and there is no need to appoint the Advocate Commissioner.

The learned Counsel for the petitioner would contended that inasmuch as the petitioner has already objected to the Advocate Commissioner''s report and in view of the fact that the Advocate Commissioner refused to measure the houses of the parties, the necessity to file an application has arisen. This Court is not inclined to accept the contentions on behalf of the petitioner for the reason that the materials are already available in the suit and further evidence need not be collected by way of appointment of an Advocate Commissioner.

The learned Counsel for the respondent, in support of this contention, garnered support of a decision of this Court reported in 2002 (3) CTC 20, in which the learned Judge, after referring to earlier decision of this Court in 2000(3) L.W.787, R. Satyanarayana Rao and 3 Ors. case, held that when there is no dispute with regard to the nature of the suit property, there is no necessity for appointment of an Advocate Commissioner to identify the character of the suit property. As far as the facts of the present case are concerned, whether the suit lane is a common lane or a private lane, has to be decided on the strength of the oral evidence and the Advocate Commissioner cannot decide the issue.

In yet another decision of this Court in (2005)1 M.L.J.592, Subramaniam v. Mariappan, represented by his Power Agent Chinnasamy and Anr., this Court has observed thus:

There is absolutely no justification in a suit of this nature, namely for rectification of documents, for the contested party to seek for an appointment of Commissioner at the appellate stage. The trial Court had gone into the issue in detail and has found against the first respondent. The appellate Court has to proceed further only on the basis of the materials available before it and the first respondent cannot be permitted at a later stage to ask for appointment of Commissioner to note down the physical features. There is absolutely no justification for the appellate Court to have ordered the petition filed by the petitioner.

In this case, there is no dispute with regard to the identity of the property. Considering the fact that the application is a belated one and also the fact that the appointment of Advocate Commissioner is not at all needed to adjudicate the rights of the party, this Court is of the view that the order passed by the appellate Court is well founded which needs no interference.

The Civil Revision Petition is devoid of merits and hence, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.