Mr. Kandasamy vs The Union of India and National Highways Authority of India

R.S. Ramanathan, J.—Considering the nature of the order to be passed in this Revision Petition, coupled with the fact that the respondents

have expressed no objection for allowing I.A. No. 1108 of 2011, there is no need to issue notice to them. The plaintiff in O.S. No. 621 of 2008,

on the file of the District Munsif Court, Namakkal, is the revision petitioner herein. He filed the suit for declaration and injunction. During the

pendency of the suit, he filed an application, viz., I.A. No. 1036 of 2008, for appointment of an Advocate Commissioner to inspect the suit

property with the help of Taluk Surveyor and to measure ''A'' schedule property and to note the physical features. The said application was

allowed and an Advocate Commissioner was appointed. Later, the said application was closed, on 29.11.2010, as the Advocate Commissioner

did not file any report, within the time stipulated by the Court below. Thereafter, the revision petitioner filed another application, I.A. No. 1108 of

2011, to re-open I.A. No. 1036 of 2008, for appointment of Advocate Commissioner and to direct the Advocate Commissioner to submit the

report with plan. As the Advocate Commissioner has already inspected the property, that application was also allowed and the Commissioner was

directed to submit the report with the plan. As the Advocate Commissioner did not submit the report, I.A. No. 1108 of 2011, was dismissed.

Aggrieved by the same, the present Civil Revision Petition is filed.

The learned counsel appearing for the revision petitioner submitted that, as directed by the Court below, the revision petitioner has paid

remuneration to the Commissioner, who also inspected the property earlier, but he has not filed the report. Therefore, instead of appointing another

Commissioner to inspect the property, the Court below directed the very same Commissioner to file report along with plan. On account of the

failure on the part of the Commissioner to submit the report, revision petitioner cannot be penalized by dismissing the application. Therefore, the

order of the Court below is liable to be set aside.

It is unfortunate that the Court below, without properly considering the case of the revision petitioner, dismissed the application filed by him for

re-opening of the case in I.A. No. 1036 of 2008. Admittedly, in I.A. No. 1036 of 2008, a Commissioner was appointed to inspect the suit

property and the Advocate Commissioner also visited the property, but, he did not file the report and on that ground, I.A. No. 1036 of 2008, was

closed. That was the blunder committed by the Court below. When the Advocate Commissioner failed to submit the report within the time

stipulated by the Court, duty is cast upon the Court below to direct the Advocate Commissioner to return the warrant and also the fee paid by the

party and appoint another counsel, as Advocate Commissioner to inspect the suit property. In stead of following the said procedure, the Court

below closed the application for appointment of the Advocate Commissioner on the ground that the Advocate Commissioner has not submitted the

report. When that was pointed out by the revision petitioner, by filing another application to re-open the former application, viz., I.A. No. 1036 of

2008, the Court below committed the same blunder in appointing the same Advocate Commissioner and directed the revision petitioner to take all

efforts to see to it whether the Advocate Commissioner files the report or not.

I am unable to understand how a party can compel the Advocate Commissioner to file the report. Similarly, it also not understandable how the

party can be punished for the default committed by the Advocate Commissioner in not filing the report. The Court below, instead of directing the

Advocate Commissioner to file the report within the time stipulated or canceling the warrant issued to the earlier the Advocate Commissioner and

issuing a fresh warrant to a new Advocate Commissioner, ought not to have dismissed the application filed by the revision petitioner on the ground

that the revision petitioner has not taken any steps to get the report filed by the Advocate Commissioner.

Hence, the order of the Court below is set aside and the Court below is directed to appoint a new Advocate Commissioner with a specific

direction, directing him to file the report within a period of four weeks from the date of his appointment. The Court below is further directed to

direct the earlier Advocate Commissioner to return the warrant issued to him and also the remuneration received by him within a time stipulated,

failing which, to take suitable action against him for his dereliction of duty. With the above observations, the Civil Revision Petition is allowed. No

costs. Consequently, connected Miscellaneous Petition is closed.