Karuppusamy vs Rangasamy

M. Venugopal, J.—The civil revision petition is filed by the petitioner as against the order dated 16.10.2008 in I.A. No. 176 of 2008 in

A.S. No. 70 of 2008 passed by the learned Principal Subordinate Judge, Gobichettipalayam in dismissing the application filed by the revision

petitioner/defendant praying for an appointment of an Advocate Commissioner under Order 26, Rule 9 of CPC to note down the physical features

such as tethering yard, standing tree and heyricks in the suit property and to submit his report after making a visit there to.

The trial Court, while passing orders in I.A. No. 176 of 2008, has inter alia, opined that the revision petitioner/defendant has not assigned

proper reasons for allowing the application praying for an appointment of an Advocate Commissioner and ultimately, dismissed the application

without cost.

The learned Counsel for the revision petitioner/defendant urges before this Court that the order of the First Appellate Court in dismissing the

I.A. No. 176 of 2008 is contrary to law and that the first appellate authority has failed to note that the boundaries and measurements given by the

respondent/plaintiff for the suit is different from Revenue Records and moreover, it has not appreciated the fact that as per Revenue Records

produced by PW1 and PW2 and the evidence given by them before the trial Court, the suit property is Natham Poramboke, whereas the

respondent/plaintiff''s case is that he has purchased the same from a private party and as such, there is a doubt about the identity of the property

and indeed, in the plaint at Para 2, the respondent/plaintiff has mentioned that the revision petitioner/defendant''s house lies on the South of the suit

property whereas the boundaries given to the property shows East West Street lies on the southern side. Therefore, there exists a doubt in regard

to the identity of the property and inasmuch as there is a doubt in regard to the identity of the suit property, that is just and necessary to appoint a

Commissioner for the purpose of clarifying the doubt and as a matter of fact, the Appellate Court has power in law to appoint a Commissioner at

any stage of the proceedings and since the year 1970, it is pending on the file of the first appellate authority, there is nothing wrong in allowing the

I.A. No. 176 praying for an appointment of an Advocate Commissioner to inspect the suit property and note down the physical features of the suit

property etc., and these aspects of the matter have not been looked into by the trial Court in a proper prospective, which has resulted in a

substantial prejudice to the petitioner and therefore, prays for allowing the civil revision petition.

In response, the learned Counsel for the respondent/plaintiff supports the order of the first appellate authority in dismissing the application

praying for an appointment of an Advocate Commissioner and he reiterated the same contentions before this Court.

It is to be noted that the respondent/plaintiff has filed a suit O.S. No. 13 of 2004 on the file of learned District Munisif Court, Sathyamangalam

praying for the relief of permanent injunction restraining the revision petitioner/defendant or his daughter or his agents to enter into the property.

The trial Court, on an appreciation of oral and documentary evidence, has ultimately passed the judgment in favour of the respondent/plaintiff

holding that the respondent/plaintiff is entitled to the relief of permanent injunction and also while answering the issue in regard to the adverse

possession, it has held that the revision petitioner/appellant/defendant has not established his case in regard to the relief of adverse possession and

ultimately, decreed the suit. As against such judgment and decree passed by the trial Court, the revision petitioner/defendant has preferred A.S.

No. 70 of 2008 on the file of Principal Subordinate Judge, Gobichettipalayam and the same is pending adjudication. In the meanwhile, the

appellant/defendant as petitioner has preferred I.A. No. 176 of 2008 before the first appellate authority praying for an appointment of an

Advocate Commissioner and after contest, the same has been dismissed by the first appellate authority on 16.10.2008.

The main grievance of the revision petitioner/defendant is that whether the suit property is Natham Poramboke or whether the same is a private

property is to be elucidated in the present case on hand and therefore, if an Advocate Commissioner is appointed to visit the suit property and to

note down the physical features therein such as tethering yard standing tree and heyricks, then it will help the first appellate authority in arriving at a

fair and just conclusion to the decision of the appeal and no prejudice will be caused to the other side by means of allowing the application praying

for an appointment of an Advocate Commissioner.

Countering the submission of the learned Counsel for the revision petitioner, the learned Counsel for the respondent/plaintiff contends that there

is no need to appoint an Advocate Commissioner at the appellate stage and already the trial Court has come to a conclusion that the

respondent/plaintiff is entitled to the relief of permanent injunction and therefore, in all fairness the dismissal of the application praying for an

appointment of a Commissioner is just and correct one in the eye of law, which requires no interference.

On a careful consideration of respective contentions, this Court is of the considered view that an appeal is a continuation of the proceedings in

the eye of law. However, in the suit, already oral evidence has been adduced by the witnesses and documents have been marked and they are all

available before the appellate court as necessary materials on record. A Court of Law has a discretion to appointment of an Advocate

Commissioner in a given case but it is to be noted that a roving enquiry or fishing expedition cannot be indulged by a party to procure or gather

evidence at a belated stage. Also this is not the case where the appellate court has observed, in its order in I.A. No. 176 of 2008 that there is

insufficient evidence or doubtful evidence available on record. One cannot ignore an important fact that at the appellate stage a lacunae in evidence

cannot be allowed to be filled in by any party defeating the rights accrued to a party in a given case.

On a careful consideration of respective contentions and also bearing in mind the available materials on record, this Court comes to an

inevitable conclusion that the application praying for an appointment of Advocate Commissioner at the appellate stage is only a surplus age and it is

not the case of necessity but on the other hand, the same is only a luxury and in that view of the matter, the revision petition fails.

In the result, the civil revision petition is dismissed, leaving the parties to bear their own costs. The order of the trial Court in I.A. No. 176 of

2008 is confirmed by this Court for the reasons assigned in this revision petition. Further, the first appellate authority viz., the Principal Subordinate

Judge, Gobichettipalayam is directed to dispose of the A.S. No. 70/2008 within a period of 2 months from the date of receipt of copy of this

order and to report compliance to this Court without fail. Consequently, connected civil miscellaneous petition is closed. Considering the facts and

circumstances of the case, there shall be no order as to costs.