R. Meshaak and R. Rajan vs G. Devasitham

M. Venugopal, J.—This civil revision petition is preferred by the revision petitioners/respondents/defendants as against the order dated

20.12.2007 passed in the Memo dated 13.12.2007 in I.A. No. 1946 of 2007 in O.S. No. 538 of 2007 by the District Munsif, Tiruvallur in

permitting the respondent/petitioner/ plaintiff to repair the roof in the presence of Advocate Commissioner already appointed.

2.The trial Court has passed orders in the Memo dated 13.12.2007 (filed by the respondent/petitioner/plaintiff''s counsel) to the effect that

''considering the facts and circumstances of this case, the petitioner is permitted to repair the roof in the presence of the Advocate Commissioner

already appointed. The commissioner may seek necessary Police assistance, if necessary. The commissioner may file his interim report on the

repairing process after its completion. Call on 17.01.2008.''

3.According to the learned Counsel for the revision petitioners/respondents/defendants, the order of the trial Court dated 20.12.2007 passed in

the Memo is based on presumption and surmises and that the trial Court has not taken into consideration of the fact that the Memo dated

13.12.2007 filed by the respondent/plaintiff is not maintainable when a petition in I.A. No. 1945 of 2007 for interim injunction is pending and that

no valid reason has been assigned in the memo and only with an intention to thwart the legal rights of the revision petitioners/ defendants the said

memo has been filed and that the Commissioner appointed in I.A. No. 1946 of 2007 in O.S. No. 538 of 2007 has not mentioned the suit schedule

property and filed his report and that the order in the memo has been passed without giving notice to the revision petitioners and therefore, the

order is against the principals of natural justice and therefore, prays for allowing the revision.

4.In I.A. No. 1946 of 2006 in O.S. No. 538 of 2007 before the trial Court, the respondent/petitioner/plaintiff has prayed for the relief of

appointment of an Advocate Commissioner along with Surveyor to note down the physical features of the suit properties and measure the same

and fix the boundaries thereof and direct him to file his report and sketch etc. On 29.08.2007 the trial Court has appointed Mr. G.Venkatesan,

Advocate, as Commissioner in the matter directing him to visit suit property and to note down the physical features and measure the suit property

with the help of the competent Surveyor and also fix the boundary stones according to both parties documents and file a report and fixed his

remuneration at Rs. 1,500/-.

5.It appears that the trial Court, in I.A. No. 1946 of 2007 on 13.12.2007, has granted time till 17.01.2008 for filing report by the Advocate

Commissioner. It is relevant to point out that a Memo dated 13.12.2007 has been filed before the trial Court on behalf of the respondent/

petitioner/plaintiff by his counsel inter alia stating that the revision petitioners/defendants frequently disturb the respondent/plaintiff so that the

plaintiff could not undertake repair works and in fact, on 29.10.2007 the revision petitioners/defendants violently removed the plastic cover on the

roof of the suit house and that caused leakage of the same etc. and therefore, prayed for an issuance of a direction to the Advocate Commissioner

to note down the physical features and to file report of the suit house and to provide necessary assistance to carry out the repair works thereof.

Admittedly, the respondent/ petitioner/plaintiff has not filed any fresh interlocutory application (other than I.A. No. 1946 of 2007) praying for a

direction to be issued to the Advocate Commissioner to note down the physical features and to file report.

6.It is to be noted that the appointment of Commissioner for ascertaining the condition of suit premises by making local inspection comes within the

purview of Order 39 Rule 7 and not under Order 26 Rule 9 C.P.C., in the considered opinion of this Court. In this connection, this Court aptly

points out the decision Kalandi Swain and Others Vs. Braja Kishore Dass and Others, wherein it is observed as follows:

In the instant case the court directed the pleader-commissioner to got to the spot for ascertainment of facts on proper examination and sifting of

materials, for elucidating or for clarifying matters in dispute so tha the report submitted by him can be treated as evidence and the court can utilise

the same while disposing of the suit. So the direction was for proper investigation and not for mere inspection, and hence, the appointment of the

pleader-commissioner was under Rule 9 of Order 26 and not under Rule 7 of Order 39, C.P.C. Therefore, it would be the duty of trial Court to

dispose of the objection filed by a party against the pleader-commissioner''s report before actually taking up the suit for hearing on merits.

The context in which the word ""inspection"" appears in Rule 7 of Order 39 it is evident therefrom that provision for the same has been made mostly

for the purpose of keeping on record the existing condition of the property so that if the same is subjected later on to any change, deterioration or

mischief by any of the parties or by any other agency or reason that can be known by the court if and when desired or required. But the purpose of

deputing a pleader-commissioner under Rule 9 of Order 26 if for ascertaining, collecting or elucidating facts in respect of any matter in dispute and

other things as mentioned in that Rule, after proper scrutiny, examination and sifting of materials. That is why such a report is automatically admitted

in evidence and forms a part of the record, whereas an inspection report under Order 39, Rule 9, submitted on mere looking into matters, is not

treated that way or given that importance.

Pending civil revision petition, this Court has appointed an Advocate Commissioner and has directed her to inspect the suit property and to find

out the physical features and to submit a report by 08.02.2008. The learned Advocate Commissioner has filed a report before this Court. The

Advocate Commissioner in a report has inter alia observed as follows:

The house has plastic sheets on the East Southern corner to have shade for cattle and keeping some dried sticks for fire. The same sheet is put on

the West side on the roof but there is no need to cover on the roof on that spot because the palm leaves are intact and in good condition which I

observed after removing the tip of the cover.

The mud walls are tall (Around 9 Feet length) and the roof is also in good condition. There is only one thin and small crack on the north side of the

wall which in my view is of normal wear and tear type.

Therefore, it is quite clear from the report of the Advocate Commissioner filed before this Court that ''there is no need to cover on the roof on

that spot because the palm leaves are intact and in good condition when she has observed after removing the tip of the cover.''

It is significant to point out that the order passed in I.A. No. 1946 of 2007 dated 29.08.2007 in regard to the appointment of Advocate

Commissioner passed by the trial Court has not been challenged before the higher forum by the revision petitioners/defendants. The grievance of

the revision petitioners is that when the trial Court has passed an order in the Memo on 20.12.2007 it has not ordered notice to the revision

petitioners, who are contesting the case and therefore, the said order suffers from violation of principles of natural justice. The contention of the

revision petitioners in this regard is worthy of acceptance by this Court and this Court is in complete agreement with the said contention. Added

further, this Court points out that when respondent/petitioner/plaintiff has filed I.A. No. 1946 of 2007 earlier and has got the relief for appointment

of an Advocate Commissioner to inspect the suit property and to note down the physical features etc. Then as a logical corollary one would expect

the respondent/ plaintiff to file another IA seeking the relief required either as an interim one or otherwise as he deems it fit in the circumstances of

the case. However, such a practice has not been resorted to by the respondent/petitioner/plaintiff in the instant case on hand. But the counsel for

the respondent/petitioner/plaintiff has filed memo before the trial Court on 13.12.2007 (on behalf of the respondent/ plaintiff) and has prayed for a

direction being issued to the Advocate Commissioner to note down the physical features and to file interim report of the suit house etc. If at all any

relief is required to be obtained from the Court of law, it is for the party or a litigant to approach necessary application before the Court in the

manner known to law. In the event of such an application being filed, then the Court may order notice to the other side so as to hear the version

put forward by them.

On the facts and circumstances of the case which float on the surface in the present case, this Court is of the considered view that the Memo

dated 13.12.2007 filed by the Advocate on behalf of the respondent/plaintiff is not proper and this Court further opines that the proper procedure

for the respondent/plaintiff is to file an appropriate application in the manner known to law for seeking necessary remedy which he requires. In

short, the Advocate cannot take the role of a litigant and file a memo seeking relief which the party desires to obtain from the Court of law. In that

view of the matter, this Court is of the considered view that the order passed by the trial Court in the Memo dated 20.12.2007 is not correct and

valid in the eye of law and resultantly, this Court allows the civil revision petition in the interest of justice.

In fine, the Civil Revision Petition is allowed. The order passed by the trial Court made in Memo dated 13.12.2007 in I.A. No. 1946 of 2007

dated 20.12.2007 is set aside. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.