Jeyabalan and Vatsala Devi vs Lakshmi Ammal

M. Venugopal, J.—The civil revision petitioners/petitioners/D.1 and D.2 have projected this Civil Revision Petition as against the order

dated 19/1/2009 in I.A. No. 322 of 2008 in O.S. No. 24 of 2008 passed by the learned Subordinate Judge, Arupukottai in dismissing the

application filed by the revision petitioners/petitioners under Order 26 Rule 9 of the CPC praying for an appointment of an Advocate

Commissioner to inspect the suit property and to find out as to whether the suit property is a lanthal house or a house constructed by applying

centring etc., and to submit a detailed report with a plan.

The trial Court while passing orders in I.A. No. 322 of 2008 has come to the conclusion that the appointment of an Advocate Commissioner to

inspect the suit property in order to find out whether the suit house is a lanthal house or a concrete house is not necessary and resultantly dismissed

the application with costs.

The learned Counsel for the revision petitioners urges before this Court that the trial Court has assigned the reason that I.A. No. 322 of 2008

praying for an appointment of a Commissioner is a belated one which cannot be sustained in the eye of law and that the ingredients of Order 26

Rule 9 of the CPC have not been looked into by the trial Court in a proper perspective and moreover, there is no question of gathering evidence

by a party, when the relief sought for in the interlocutory application is only for an appointment of an Advocate Commissioner and according to the

defendants, the house is not a lanthal house but it is a concrete and cement house built by the defendants predecessor and in any event, the order

passed by the trial Court is an erroneous one and requires to be set aside in the interest of justice.

Expatiating his arguments, the learned Counsel for the revision petitioners contend that at any stage of the case, an application for appointment

of a Commissioner can be projected by a party and delay in projecting the said application cannot go against the revision petitioners and in this

regard, the trial Court has committed an error, which requires to be set right at this stage of the revision. It cannot be in dispute that an application

for appointment of an Advocate Commissioner can be filed by a party to a case at any stage of the proceedings. In this regard, it is to be noted

that the power to appoint an Advocate Commissioner is a discretionary relief given to a Court of law and of course, the Court of law has to

exercise its discretion in a proper and effective way, in the considered opinion of this Court.

Admittedly, the respondent/plaintiff has filed the main suit O.S. No. 24 of 2008 for the relief of declaration that the suit property belongs to him

and for the consequential relief of recovery of possession and in the alternative, relief of partition has been prayed for and the suit is pending in part

heard stage before the trial Court.

At this juncture, the learned Counsel for the revision petitioners brings it to the notice of this Court that Order 26 Rule 9 of the CPC enjoins that

for the purpose of elucidating any matter in dispute, an Advocate Commissioner can be appointed by a Court of law at the instance of a party and

therefore, the revision petitioners/defendants have rightly projected I.A. No. 322 of 2008 praying for an appointment of an Advocate

Commissioner in the matter in issue and this cannot be found fault with in any manner by the trial Court.

It is to be borne in mind that it is not the aim of Order 26 Rule 9 of the CPC to assist the party to collect evidence, where he or she can get the

evidence for himself/herself. As far as the present case is concerned, the application for appointment of an Advocate Commissioner in order to find

out whether the suit property is a lanthal house or a one made of concrete and cement centering built by the defendants predecessor is a matter

which can be proved by a party during the trial of the case by means of oral and documentary evidence in the manner known to law and viewed in

this perspective, the application for appointment of an Advocate Commissioner namely I.A. No. 322 of 2008 is only a surplus age and not a case

of necessity and resultantly the Civil Revision Petition fails and the same is hereby dismissed.

In the result, the Civil Revision petition is hereby dismissed. The order passed by the trial Court in I.A. No. 322 of 2008 is affirmed by the

reasons assigned in this revision. It is open to the revision petitioners/defendants to substantiate their case before the trial Court by means of an oral

and documentary evidence in accordance with law and the trial Court shall permit the petitioners in this regard. Further, the trial Court is directed

to proceed with the conduct of the suit uninfluenced with any of the observations made by this Court in this revision.