Muthusamy Gounder vs Mylsamy Gounder

S. Manikumar, J.—Civil Revision is directed against the order appointing an Advocate Commissioner to note down the physical features

and measure the properties fully described in the schedule with the help of a Surveyor and to file a detailed report with plan.

The brief facts leading to the filing of the Civil Revision Petition are as follows:

(i) The petitioner is the defendant in the suit. The respondent/plaintiff filed a suit in O.S. No. 289 of 1998 on the file of District Munsif Court,

Pollachi for declaration of his title and for permanent injunction restraining the petitioner/defendant from interfering with his possession thereof.

After considering the oral and documentary evidence, by judgment and decree dated 18.04.2001, the District Munsif, Pollachi had decreed the

suit in part, granting a decree for declaration of his title. Insofar as the relief of permanent injunction is concerned, the Court held that the

respondent/plaintiff had not proved his claim for possession of the suit property and the alleged trespass made by the petitioner. In the result, the

Lower Court dismissed the suit.

(ii) After two years, another suit has been filed by the respondent/plaintiff in O.S. No. 100 of 2003 on the file of the same Court against the

petitioner/defendant praying for a decree of permanent injunction. Written statement has been filed in this case by the petitioner/defendant and that

the maintainability of the latter suit has also been questioned on the principles of resjudicata and other grounds.

In the above suit, the respondent/plaintiff in paragraph 3 of the plaint has stated as follows:

However, the prayer for permanent injunction was dismissed on the ground that the cause of action was not proved. It is submitted that,

subsequently also the revenue officials have measured the property of the plaintiff and defendant and the stones had been fixed in the dividing line

clearly demarcating the suit property and the defendant​s property. Hence, there is no necessity to seek for the appointment of the Commissioner to

fix the dividing line.

While that be the position, the respondent/plaintiff has filed an application for appointment of an Advocate Commissioner in I.A.No. 251 of

2005 to inspect and measure the suit property with the help of a Surveyor. The said application was resisted by the petitioner/defendant,

contending that the suit itself is not maintainable and therefore the second application for appointment of an Advocate Commissioner is contrary to

his own pleadings made in paragraph 3 of the plaint and the findings rendered in the earlier suit in O.S.No. 289 of 1998, which was disposed of on

18.04.2001.

While appointing the Advocate Commissioner, the Lower Court has passed the following order:

Records perused. The suit is filed for permanent injunction and on perusal of both plaint and written statement it seems that the dispute is only with

regard to 75 cents and by fixing the boundary with help of surveyor will decide the entire issue in the suit even in the earlier suit it seems that the

relief of injunction has not been granted. Since the Commissioner has not been appointed and the boundary has not been fixed with the help of

surveyor. Hence under those circumstances as rightly contended by the learned Counsel for the petitioner by appointing the commissioner will

reduce such of the oral evidence. Hence Thiru M. Mujibur Rahman, has been appointed the Commissioner to inspect the suit property with the

help of surveyor and note down the physical features along with the surveyor. Commissioner report and plan by 23.09.2005. Commissioner fee of

Rs. 1500/- payable directly to Commissioner by the petitioner.

Aggrieved against the said order, the present Revision Petition is filed.

Learned Counsel for the petitioner submitted that inasmuch as the respondent himself has admitted in the plaint filed in the present suit, that the

Revenue Officials have measured the properties of the petitioner and the respondent, and stones have been fixed in the dividing line demarcating

the said property of the respondent/plaintiff, there is no necessity to seek for an appointment of an Advocate Commissioner to fix the dividing line.

He further submitted that though the Lower Court has stated that records have been perused, there is an error apparent on the face of the record

and the pleadings have been totally lost sight of by the Lower Court.

Learned Counsel for the respondent submitted that there is a long-standing dispute and the only way to arrive at a conclusion is by fixing the

boundary lines of the suit properties.

In a decision reported in S. Anthonidoss and Another Vs. Sabesthiyan and Another, , Justice Raju, (as His Lordship then was) has held that a

Commissioner is not to be appointed for mere asking. ""The question of appointment of a Commissioner does not depend upon whether any

prejudice will be caused to the other side or not. Instead there should be sufficient basis and justification and also an effective need. An

appointment of Commissioner cannot be sought for or obtained as a matter of course and that too to achieve an ulterior object or motive.

In yet another decision reported in R. Satyanarayana Rao and three Ors. v. M.K. Manoharan @ K. Manoharan and Anr. 2000 (3) L.W.787, this

Court in paragraph 15 has held as follows:

... When a Commissioner has been appointed unnecessarily, and when the Lower Court has passed that Order without taking into

consideration the pleadings in the case, and without considering the fact whether such issuance is necessary, it can certainly be said that the Court

has acted illegally. ...

The appointment of an Advocate Commissioner is only to aid the Court to assess the evidence let in by both parties with respect to the dispute.

In the instant case, the Court below while deciding the application for appointment of an Advocate Commissioner has stated that merely because

an Advocate Commissioner was not appointed on the earlier occasion, the relief of injunction was not granted. The Lower Court has gone beyond

the scope of the powers under Order 26 Rule 9 and has exceeded in its jurisdiction. Since the Revenue Officials have already demarcated the area

and fixed stones dividing the property of the petitioner and the respondent, no purpose will be served in inspecting the property with the help of a

Surveyor to note down the physical features in the suit for permanent injunction. The Court shall not appoint an Advocate Commissioner in a

mechanical manner without considering the need for it, overlooking the facts pleaded by the parties.

The Lower Court has exceeded in its jurisdiction and the order suffers from material irregularity. In the result, the order of the Lower Court is

set aside and the Civil Revision Petition is allowed. No costs. Consequently, connected C.M.P. No. 17233 of 2005 is closed.