Manickam and Others vs Ayyavoo @ Sittan

M. Venugopal, J.—The revision petitioners/petitioners/defendants have filed this civil revision petition aggrieved against the order dated

24.06.2008 in I.A. No. 643 of 2006 in O.S. No. 38 of 2006 passed by the District Munsif Court, Sankari in dismissing the application filed by the

revision petitioners/petitioners/defendants praying for an appointment of Advocate Commissioner under Order 26 Rule 9 and Section 151 of Civil

Procedure Code.

The trial Court, while passing orders in I.A. No. 643 of 2006, has inter alia opined that ''the classification of lands can be determined at the time

of trial of the main case and to find out the land classification the report of the Commissioner is not necessary and has resultantly, dismissed the

application.''

The learned counsel for the revision petitioners submits that the revision petitioners in I.A. No. 643 of 2006 before the trial Court have only

prayed for demarcation of item No. 2 of the suit property and to note down the Vinayagar temple in it and also to measure item No. 2 of the suit

property by means of an appointment of Commissioner so that much of the oral evidence on their side and much of the precious time of the trial

Court can be saved and this aspect of the matter has not been looked into in a proper perspective by the trial Court and this has resulted in a

miscarriage of justice and therefore, prays for allowing the civil revision petition in the interest of justice.

In the suit the respondent/plaintiff has sought for a relief of permanent injunction in respect of item No. 1 and 2 of the suit properties as against

the defendants or the agents, men, servants etc. and also for the relief of permanent injunction in restraining the defendants, their men, agents, etc.

from any way obstructing the plaintiff in using the item 3 of suit properties.

It is an axiomatic fact that the appointment of a Commissioner Order 26 Rule 9 is a discretionary power of the Court. The aim of Order 26 Rule

9 of CPC is not to assist a party to gather evidence, where he can procure or produce the evidence himself. It is no doubt true that a Court of law

cannot prevent a party from adducing the best evidence. But at the same time, the appointment of Commissioner cannot be prayed for before a

court of law on mere conjectures or based on assumptions. However, the Court while appointing the Commissioner has to see whether the

purpose for which such appointment is being projected is relevant to the relief claimed in the suit. Admittedly, the suit has been filed by the

respondent/plaintiff for permanent injunction etc. The revision petitioners/petitioners/defendants cannot file an application for appointment of a

Commissioner to collect evidence or gather evidence. Per contra, the parties in the suit can project their claim based on the evidence and with the

available materials on record. In a civil suit, the respondent/plaintiff has to prove their case. Therefore, viewed in that perspective, the prayer for

appointment of Commissioner in I.A. No. 643 of 2006 is only a luxury and not a case of necessity and in that view of the matter, the revision

petition fails and the same is hereby dismissed.

In fine, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A. No. 643 of

2006 is confirmed for the reasons assigned by this Court. The trial Court is directed to proceed with the further conduct of the proceedings in the

suit uninfluenced by any of the observations made by this Court in this revision. Consequently, connected miscellaneous petition is also dismissed.