M. Ali Baba (died), Rabikka Banu and Others vs Selvam Thaol Metha (died), William Thal Metha and Others

G. Rajasuria, J.—The epitome and the long and short of the germane facts absolutely necessary for the disposal of this Civil Revision

Petition would run thus:

The learned counsel for the revision petitioners / plaintiffs would, avoiding discursive narration, pithily and precisely, put forth and set forth his case

thus:

His clients, viz. plaintiffs filed a suit for injunction in respect of an immovable property. The defendants 1 to 3 filed their written statement resisting

the suit by contending that unless the boundaries are demarcated, the question of granting any relief in favour of the plaintiffs would be a well-neigh

impossibility. Subsequently, the plaintiffs filed an application for getting a Commissioner appointed and accordingly the Court allowed the

application. However, the suit was dismissed for default and the said application also was dismissed for default. According to the learned counsel

for the revision petitioners, the erstwhile counsel for the plaintiffs made an endorsement of no instructions. Subsequently, through some other

Advocate, the plaintiffs filed an application for getting the suit restored and that was allowed. Once again, an application was filed for getting an

Advocate Commissioner appointed, whereupon, after hearing both the sides, the Lower Court dismissed the application on the ground that in the

earlier occasion an Advocate Commissioner was appointed but that was not made use of by the plaintiffs. Being aggrieved by and dissatisfied with

the same, the present Civil Revision Petition has been focussed.

The learned counsel for the revision petitioners would submit that since defendants 1 to 3 themselves had contended that unless an Advocate

Commissioner identified the suit property, the question of proceeding further would be a well-neigh impossibility, and the Lower Court should have

ordered such appointment of Advocate Commissioner.

Whereas, the learned counsel for the first respondent/second defendant, would submit that absolutely there is no merit in the revision as the suit

was filed during the year 2002 itself and the plaintiffs have been dilly dallying and shilly shallying with the matter, which was taken note of by the

Lower Court and accordingly the I.A. was dismissed.

The learned counsel for the second respondent / third defendant would clarify by pointing out that even when originally the suit was filed, the first

application in I.A. No. 129 of 2002 for appointment of an Advocate Commissioner was filed and it was dismissed as not pressed. Subsequently,

the plaint was got amended in respect of the description of the property in the schedule of the plaint. There was also impleadment of new parties.

Thereafter, an application in I.A. No. 452 of 2005 was filed for the same purpose of getting an Advocate Commissioner appointed. Even though

the Advocate Thiru. Thirukannan was appointed as Advocate Commissioner, subsequently that application was also endorsed as not pressed and

it was dismissed. Thereafter, the suit itself was dismissed for default. Wherefore the Lower Court correctly dismissed the subsequent I.A. No. 53

of 2012 which was filed by the plaintiffs frivolously and it was dismissed warranting no interference in revision.

The point for consideration is as to whether the appointment of an Advocate Commissioner for visiting the suit property and locating the same

with the help of a surveyor and noting down the physical features, is absolutely necessary or not.

A fresh application in I.A. No. 53 of 2012 for getting an Advocate Commissioner appointed for visiting the suit property and measuring the

same with the help of a surveyor and noting down the physical features was dismissed by the Lower Court mainly on the ground that earlier the

two applications referred to supra were dismissed as not pressed and also on the ground that the plaintiffs were not entitled to cull out evidence

with the help of an Advocate Commissioner.

At this juncture, I would like to point out that so far as this case is concerned, the plea of res judicata or estoppel, cannot be pressed into

service for the simple reason that the Court at any stage can appoint an Advocate Commissioner, provided there is necessity for better

adjudication. Earlier, the first application filed in I.A. No. 129 of 2002 which was ordered, was dismissed as not pressed presumably on the

ground that the description of the property in the plaint itself was erroneous. Subsequently another I.A. in I.A. No. 452 of 2005 was filed and that

was filed after amendment of the plaint. However, that was dismissed once again presumably as a prelude to the dismissal of the suit itself for

default. At this juncture alone, the averments made in the affidavit of the revision petitioners, deserve consideration. Obviously there is some tinge

of truth in the allegations of the plaintiffs in the affidavit that there was some communication gap between their erstwhile Advocate and themselves.

The suit was got restored by engaging one another Advocate which is quite obvious and with the help of the new Advocate, they filed the third

application in I.A. No. 53 of 2012. Wherefore, what I would like to glean and discern from the attending circumstances is that, owing to some

communication gap between their erstwhile Advocate and the plaintiffs, certain delays occurred and now, the plaintiffs want to get the suit property

located and physical features noted with the help of an Advocate Commissioner and a Surveyor.

The suit itself is for permanent injunction. The learned counsel for the defendants 1 and 2 previously filed the joint written statement. However,

the third defendant subsequently filed a separate additional written statement quite different from the stand taken from the earlier joint written

statement, by contending that previously the said Advocate for the defendants 1 to 3 detailed and delineated certain facts which were not

agreeable to D3. Thus contending, D3 filed the separate additional written statement, but no steps were taken by D3 to get amended the earlier

written statement or to get scrapped the earlier commitments made in the written statement. Be that as it may, the learned counsel for the third

defendant raised a legal objection that the Commissioner cannot be appointed purely for the purpose of gathering and collecting information and

particulars so as to fortify and buttress the false plea of the plaintiffs.

On the one hand, the plaintiffs would contend that there is a house constructed by them in the suit property, whereas D3''s contention is that no

such house is there in the suit property. So, there lies the law point as well as logic point. The whys and wherefores are that once an Advocate

Commissioner visits and measures the suit property with the help of a surveyor with reference to the survey map, it would be glaringly, pellucidly

and palpably clear as to whether such a house is situated within the suit property or not and that would help the Court to render a judgment by

putting the facts and reasons on an even keel. I would like to recall the adage ""A picture is worth thousand words"".

Instead of both the sides prolonging the trial by adducing oral evidence on an enormous scale, the appointment of an Advocate Commissioner to

visit the suit property and measure it and note down the physical features, would solve the entire problem in this case. However, while holding so, I

wish to state that there is negligence on the part of the plaintiffs in not prosecuting the matter diligently and sedulously. The suit is of the year 2002

and obviously the conduct of the plaintiffs is not appreciable. A question might arise as to whether on that ground of lapse of time alone, the real

issue should be allowed to be decided on patchy and dubious evidence that would be adduced by both the sides. In my considered opinion, the

impugned order of the Lower Court would not be conducive for the effective disposal of the matter finally. Hence, I would like to set aside the

order of the Lower Court. It is an incontrovertible fact that an Advocate Commissioner should not be appointed for collecting evidence so as to

buttress the plea of the parties, but the reality has to be brought on record.

Therefore, the impugned order passed by the Lower Court is set aside mandating the Lower Court to issue a Commission warrant with the

mission that the Commissioner should visit the suit property, measure it with the help of a surveyor, by referring to the survey map and documents

available and locate the same and note down the physical features also and submit a detailed report in this regard. He is not expected to collect any

evidence by examining any witnesses or by analysing any documents. The Commissioner''s fee shall be fixed as per the prevailing practice in the

Lower Court. The revision petitioners shall pay a cost of Rs. 2,000/- (Rupees Two Thousand Only) each to the respondents 1 and 2 within a

period of two weeks from today. In view of the long pendency of the suit, in positive response to the representation made by the learned counsel

for the second respondent/D3, I would like to mandate the Lower Court to dispose of the suit itself, within a period of five months from the date of

receipt of a copy of this order. The Civil Revision Petition is disposed of with the above observation.

Consequently, the connected miscellaneous petition is closed. No costs.