Panchavarnam vs Murthy

M.M. Sundresh, J.—This Civil Revision Petition has been filed by the defendant challenging the order of appointment of Commissioner

made in I.A. No. 231 of 2007 in O.S. No. 22 of 2003.

The respondent herein being the plaintiff filed a suit for permanent injunction. Pending the suit, an application for appointment of Commissioner

has been filed by the petitioner in I.A. No. 145 of 2003. Thereafter, another application has been filed in I.A. No. 102 of 2005 by the petitioner.

In the said application, the Commissioner was appointed and the respondent has filed his objection to the said Commissioner''s report.

The respondent herein filed an another application seeking to re-issue the warrant to the same Commissioner. The Court below has allowed the

said application and hence the revision petition.

The learned Counsel for the revision petitioner submitted that without giving a finding about the necessity of re-issuing the warrant, the trial Court

has allowed the application. The learned Counsel for the revision petitioner has also relied upon the judgment in R. Sivasubramanian Vs. S.

Balamurugan, in support of his case.

The learned Counsel for the respondent submitted that in view of the objections raised by the respondent to the Commissioner''s report, in order

to solve the dispute between the parties, the Court below has correctly appointed the Commissioner. The learned Counsel further submitted that

the Commissioner has filed his report. In support of his contention, the learned Counsel relied upon the judgment in S. Sundarasamy v. S.

Saraswathy 2007 (2) MLJ 355 and in Kamala Devi v. T.P. Manoharan 2009 (1) MLJ 1331.

I have heard the learned Counsel for the petitioner as well as respondent.

In the case on hand, the dispute between the parties is as to whether the suit property covers the sale deed of the petitioner or of the

respondent. It is also seen that in pursuance of the order passed by the trial Court, the learned Commissioner has inspected the suit property and

filed his report. In the judgment reported in R. Sivasubramanian Vs. S. Balamurugan, relied upon by the learned Counsel for the petitioner, the

Honourable High Court has held that the second Commissioner cannot be appointed unless the earlier Commissioner''s report is found to be

unnecessary and needs further enquiry. On a perusal of the said judgment, this Court is of the opinion that the said judgment is not applicable to the

present case on hand, since the trial Court has ordered the application in view of the fact that the further enquiry is required.

Further in the said case, the order passed appointing the Commissioner has been set aside and remanded for further consideration.

As mentioned earlier, in the present case the Commissioner has already been appointed and the report having been filed, this Court is of the

opinion that the order passed by the Court below, does not call for any interference.

Insofar as, the judgments relied upon by the learned Counsel for the respondent are concerned in 2007(2)MLJ 355 S. Sundarasamy v. S.

Saraswathy, the Honourable High Court has held that when there is a dispute over the physical features of the suit property, even after the report

filed by the Advocate Commissioner, the very same Commissioner can be directed to inspect the property to file supplementary report. Further in

the judgment reported in 2009 (1) MLJ 1331 (Kamala Devi v. T.P. Manoharan), it is held that the Court can always exercise its power for

seeking re-issuance of warrants to the Advocate Commissioner. It is seen in the present case, objections have also been filed by the respondent as

against earlier Commissioner''s report.

Therefore, considering the aforesaid facts, this Court is of the opinion that the order passed by the Court below does not warrant any

interference. It is also well known that the Commissioner''s report is nothing but a piece of evidence. It is for the trial Court to consider the

evidentiary value of the report for deciding the issue.

The learned Counsel for the petitioner submitted that there are three reports on the file of the Court below and therefore, the Court below will

have to look into the reports before deciding the suits. It is needless to say that the trial Court will have to look into the all reports while deciding

the said suit.