Jagadeswari vs Kandasamy

R. Mala, J.—C.R.P.(PD) No. 3646 of 2013 has been filed challenging the impugned order dated 14.08.2013 made in I.A. No. 738 of 2013 in O.S. No. 297 of 2006. C.R.P. (PD) No. 3647 of 2013 has been filed challenging the impugned order dated 14.08.2013 made in I.A. No. 740 of 2013 in O.S. No. 295 of 2006.

C.R.P. (PD) No. 4164 of 2013 has been filed challenging the impugned order dated 14.08.2013 made in I.A. No. 739 of 2013 in O.S. No. 293 of 2006.

The brief facts of the case is that the respondents herein as plaintiffs have filed three different suits for specific performance against the revision petitioners/defendants. The defendants raised the plea that the sale agreement is a forged one. During the pendency of the suits, the plaintiffs/respondents filed applications under order 26 Rule 9 CPC in I.A. Nos. 738, 740 and 739 of 2013 for appointment of Advocate commissioner to note down the physical features of the petition mentioned property and to direct the commissioner to file the report along with plan. The Trial Court after considering the arguments advanced by both sides, appointed the Advocate Commissioner against which the present Civil Revision Petitions have been filed.

The learned counsel appearing for the petitioners would submit that to prove the factum of possession, the Trial Court has appointed the Advocate Commissioner on the request made by the respondents/plaintiffs. As per the dictum laid down by the Hon''ble Apex Court an Advocate commissioner cannot be appointed to collect material evidence to prove the case, that too to prove the fact of possession. The said factum has not been considered by the Trial Court and hence, the learned counsel for the revision petitioners prayed for setting aside the impugned orders. To substantiate his argument, he relied upon the following decisions:

2008 (3) CTC 597, K.M.A. Wahab and others v. Eswaran and another.

Chinnathambi,Mani @ Sellammal and Selvaraj Vs. Anjalai .

2008 (5) CTC 181, Meenakshi v. Vennila and another.

R. Justin Arulappa Vs. R. Xavier Arulappa and Gerayana Rani, .

Elango Vs. Kasthuri, .

Resisting the same, the learned counsel for the respondents would submit that in pursuant to the impugned order passed by the Trial Court on 14.8.2013, the respective Commissioners inspected the property on 30.8.2013 and filed their report on 18.9.2013. So, the Civil Revision Petitions themselves have become infructuous. The revision petitioners can adjudicate the matter before the appropriate forum in the manner known to law. Hence, the learned counsel for the respondents prayed for the dismissal of the Civil Revision Petitions.

Considered the rival submissions made by both sides and perused the typed set of papers.

It is an admitted fact that the respondents herein as plaintiffs have filed the suit for specific performance. The revision petitioners/defendants resisted the same stating that the sale agreement itself is a forged one. In the affidavit in support of the application filed under Order 26 Rule 9 CPC, it was specifically stated that in pursuance of the agreement, the revision petitioners/defendants handed over the property to the respondents/plaintiffs. The respondents/plaintiffs took possession of the property and spent a sum of Rs. 7,00,000/- to level the land, form layout and for laying roads. To prove the same, appointment of Commissioner is necessary. It is appropriate to incorporate paragraphs 4 and 5 of the affidavit.

"4. I submit that after the execution of suit agreement, the respondent has handed over the possession of the petition mentioned property to us in order to form layout, layout roads and get approval from the concerned authorities. As such we have taken possession of the suit property, levelled the land and formed layout and layout roads and spent Rs. 7,00,000/-. After forming of layout, we have taken photographs of the petition mentioned property. In order to prove that the layout is formed in the petition mentioned property, it has become necessary for us to take out a commission to note down the physical features of the petition mentioned property.

I further submit that appointment of commission will elucidate the matter in dispute and it will save the valuable time of the Hon''ble Court. Unless the commission is appointed, we will be put to irreparable loss and hardship besides being prejudiced."

The revision petitioners/defendants filed counter and contested the same. At this juncture, it would be appropriate to consider the decisions relied on by the learned counsel appearing for the revision petitioners.

9.1. In the decision reported in 2008 (3) CTC 597, K.M.A. Wahab and others v. Eswaran and another, it was held that as far as the factum of possession is concerned, Court alone could gather evidence through parties and it cannot entrust the matter to Advocate Commissioner to collect the evidence. It is appropriate to incorporate paragraph 6 of the said decision:

"6. This Court has carefully considered the arguments put forth on either side. Order 26, Rule 9, CPC states as follows:

Commissions to make local investigations. - In any Suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made Rules as to the persons to whom such commission shall be issued, the Court shall be bound by such Rules."

It is evident from the above said provisions of law that a Court may appoint a commissioner in any Suit where it deems a local investigation to be requisite for the purpose of elucidating any matter in dispute. It is necessary to point out in the affidavit filed in support of I.A. No. 697 of 2006, it is stated by the respondent therein that he is alone in possession by cultivating the suit property and only to seek to find out the factum of possession, he sought for appointment of the Advocate-Commissioner under the pretext of taking of the physical features indirectly. Such reasons ought to have been rejected by the Trial Court as untenable. As far as the factum of possession is concerned, the Court alone gather evidence through the parties and it cannot entrust the said matter to the Advocate-Commissioner to collect the evidence. As held in the judgment reported in Mrs. Jabeen Taj Vs. Mrs. M. Parveen Banu and M. Javeed Khan, , in as much as there is no dispute with regard to the identity of the property, the Trial Court has no reason to appoint the Advocate-Commissioner. Similarly, in the other judgment reported in Chandrasekaran Naidu and Others Vs. V. Doss Naidu, , it is held that though remuneration is paid by the party, who sought for appointment of the Advocate-Commissioner, as such no prejudice will be caused to the other side, is not at all relevant factor for appointment of the Advocate-Commissioner."

9.2. In the decision reported in Chinnathambi,Mani @ Sellammal and Selvaraj Vs. Anjalai , it was held that the Court cannot assist either party to suit in collecting evidence where such evidence can be collected by party himself. It is appropriate to incorporate paragraph 6 of the said decision:

"6. We shall now consider some of the decisions rendered by various courts in this regard.

(i) In a decision reported in Puttappa Vs. Ramappa, , in paragraph 3, the Court held as follows:

a Commissioner cannot be appointed to find out as to who is in possession of the property. Under Order 26, C.P.C. a Commissioner can be appointed to make local investigation to investigate the facts or other materials which are found in the property and to make a report in regard to that matter to the Court. In a suit for injunction the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of the evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner who cannot find out as to who is in possession of the property. Accordingly, the Lower Court was right in rejecting the application."

(ii) In a decision reported in Union of India (UOI) and Another Vs. Kripal Industries, , the Court in paragraph 18 has held as follows:

Power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist party to collect evidence where it can get evidence itself. In the case on hand the written statement has already been filed, therefore, the disputed question of fact can be adjudicated upon by the Court after framing the issues and recording the evidence of the parties. For such purpose assistance of Commissioner is neither necessary not justified."

(iii) In a decision reported in Penta Urmila and Others Vs. Karukola Kumaraswamy and Others, , the Court in paragraph 6 has held as follows:

"6. In a suit for permanent injunction, the vital and important issue is whether the plaintiffs are in possession of the suit schedule land and whether there was attempt by the defendant/s to interfere with such possession of plaintiffs. The burden is entirely on the plaintiffs to bring convincing and cogent evidence on record and for so doing, it is not permissible for them to invoke Order XXVI Rule 9, which is intended for difference purpose. Further, if at this stage, Advocate Commissioner files a report, as directed by Appellate Court with the assistance of the Mandal Surveyor it would certainly amount to introducing additional evidence which is ordinarily not permissible unless proper application is made under Order XLI Rule 27 satisfying the conditions therein."

9.3. In the decision reported in 2008 (5) CTC 181, Meenakshi v. Vennila and another, it was held that the factum of possession cannot be ascertained by seeking an appointment of an Advocate Commissioner and the party must prove the factum of possession by letting in oral and documentary evidence. It is appropriate to incorporate paragraph 9 of the said decision:

"9. It is true that Order 26 Rule 9 of C.P.C. empowers the Court to appoint commissioner to make local investigation as it finds fit and proper based on the facts and circumstances of the case. At this stage, it is pertinent to point out that it is not the aim of Order 26 Rule 9 of C.P.C. to assist a litigant to collect evidence, where the litigant can get evidence himself. In the instant case, the suit has been filed only for permanent injunction and as such in regard to the factum of possession, this Court opines that the lower court alone can gather evidence through the parties to the litigation and therefore, the same cannot be entrusted to the Advocate Commissioner to gather evidence and in that view of the matter, the Civil Revision Petition fails and the same is hereby dismissed in the interest of Justice."

9.4. In the decision reported in 2009-5-L.W.711, R. Justin Arulappa v. R. Xavier Arulappa and another, it was held that appointment of an Advocate Commissioner cannot be utilized for the purpose of gathering or collecting evidence by other party in any proceedings. It is appropriate to incorporate paragraph 4 of the said decision:

In case of this nature, where the dispute between the parties relates to the determination of question of encroachment made by the other party, it is necessary that the other party should be given notice and allow him to put forth his defence before issuing a commission to visit the suit property and to make even the local investigation. It is rightly pointed out by the learned counsel for the petitioner that the appointment of an Advocate Commissioner cannot be utilized for the purpose of gathering or collecting evidence by other party in any proceedings.

9.5. In the decision reported in Elango Vs. Kasthuri, , it was held that as far as the factum of possession is concerned, Court alone could gather evidence through parties and it cannot entrust the matter to Advocate Commissioner to collect the evidence. It is appropriate to incorporate paragraph 12 of the said decision:

As far as the factum of possession is concerned, the court alone could gather evidence through the parties and it cannot entrust the said matter to the Advocate Commissioner to collect evidence. Likewise, disconnection of electricity service connection can be proved by other means and evidence and it is not necessary to appoint an Advocate Commissioner for the said purpose. The judgment relied by the respondent rendered in the case of Karthikeyan vs. Kannan @ Rajendran (2008-2-TLNJ-93-Civil) has no application to the case on hand, as the said suit was filed for specific performance and appointment of Advocate Commissioner was made to note down features of the suit property.

Considering the ratio laid down in the above decisions and also the dictum of the Hon''ble Apex Court, an Advocate Commissioner cannot be appointed to collect material evidence to prove the case, that too to prove the factum of possession. However, the Trial Court without considering the same has appointed the Advocate Commissioner.

As far as the argument advanced by the learned counsel for the respondents/plaintiffs that in pursuant to the impugned order passed by the Trial Court on 14.8.2013, Advocate Commissioners inspected the property on 30.8.2013 and filed their report on 18.9.2013 and so, the Civil Revision Petitions themselves have become infructuous, it has to be seen that the present Civil Revision Petitions have been filed much prior to date on which the Advocate Commissioners filed their report. In such circumstances, the argument advanced by the learned counsel for the respondents/plaintiffs that the revisions have become infructuous does not merit acceptance.

Thus, considering the facts and circumstances of the present case in the light of the decisions relied on by the learned counsel for the revision petitions and the dictum laid down by the Hon''ble Apex Court that an Advocate Commissioner cannot be appointed to collect material evidence to prove the case, that too to prove the factum of possession, I am of the view that the Trial Court has committed an error in allowing the applications for appointment of Advocate Commissioner. So, mere filing of the report by the Advocate Commissioner will not vitiate the right of the revision petitions. Once the appointment of Advocate Commissioner itself is set aside, the report filed by the Commissioner becomes non-est in the eye of law. In such circumstances, the impugned order of the Trial Court is liable to be set aside and accordingly set aside and the Civil Revision Petitions stands allowed. Consequently, connected miscellaneous petitions are closed. However, no order as to costs.