R. Myilsamy vs S. Myilsamy and Others

R. Mala, J.—Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondents.

The second defendant in O.S. No. 205 of 2010 has come forward with the present Civil Revision Petition challenging the impugned order dated 18.08.2015 made in I.A. No. 168 of 2015 in O.S. No. 205 of 2010, wherein the application for appointment of an Advocate Commissioner filed under Order 26 Rule 9 CPC came to be dismissed.

It is contended by the learned counsel for the revision petitioner that three suits are pending between the very same parties. The 1st respondent herein has filed a suit in O.S. No. 205 of 2010 claiming damages and another suit in O.S. No. 207 of 2010 for permanent injunction restraining the defendants therein from interfering with his peaceful possession, except by due process of law. In turn, the deceased father of the revision petitioner, as plaintiff has filed the suit in O.S. No. 209 of 2010 for declaration of title and recovery of possession. All the three suit are directed to be tried jointly and now it has been posted for arguments.

While so, the revision petitioner herein filed an application in I.A. No. 168 of 2015 in O.S. No. 205 of 2010 for appointment of an Advocate Commissioner to inspect the suit property to note down the physical features of the subject matter of all the three suits and file a report regarding the age and stability of the building along with sketch, with the help of an expert, to prove that the property is not fit for occupation.

The Trial Court after considering the submissions made by both sides, dismissed the application in I.A. No. 168 of 2015 stating that this Court by an order dated 21.08.2014 in C.R.P. No. 1509 of 2011 had directed the Trial Court to dispose of the suit within three months from the date of receipt of the copy of that order and already the oral evidence had been adduced and the matter was posted for arguments and only with a view to drag on the proceedings, the said application was filed. Against the aforesaid order of the Trial Court, the present Civil Revision Petition has been preferred.

The learned counsel appearing for the revision petitioner would submit that the subject matter of all the three suits are one and the same. The respondent herein has put up lease arrangement and filed a suit as if he is in possession and enjoyment of the suit property and sought for injunction. On the other hand, the petitioner''s father filed a suit in O.S. No. 209 of 2010 for declaration of title and recovery of possession. To prove that the suit property is not fit for occupation and it was abandoned for the past 10 years, the appointment of an Advocate Commissioner is necessary. However, the said factum was not properly considered by the Trial Court.

Resisting the same, the learned counsel appearing for the respondent would submit that already oral evidence had been adduced and the suits are now pending for arguments for the past one year. Hence, at this juncture there is no necessity to file an application for appointment of an Advocate commissioner and so, the learned counsel for the respondent prayed for dismissal of the Civil Revision Petition.

Considered the rival submissions made by both sides and perused the typed set of papers.

The only point that has been raised is that to prove that the suit property is not fit for occupation and it was abandoned for the past ten years, the appointment of an Advocate Commissioner is necessary to inspect the suit property to note down the physical features and file a report regarding the age and stability of the building along with sketch, with the help of an expert.

But it is pertinent to note the nature of the suits filed by both the parties. The petitioner''s father filed the suit for declaration of title and recovery of possession, whereas the 1st respondent filed the suits for permanent injunction restraining the defendants therein from interfering with his peaceful possession, except by due process of law and also for damages. Further, it is not a Rent Control proceedings for demolition and re-construction, so as to determine the age and stability of the building and to find whether it is fit for occupation is immaterial.

Furthermore, it is pertinent to note that as admitted by the learned counsel for the revision petitioner, originally the suits were filed in the year 1999 and after the matters were transferred to the file of the Subordinate Court, Sathyamangalam, the suits were renumbered as O.S. Nos. 205, 207 and 209 of 2010 and are pending for more than 15 years.

In such circumstances, this Court by an order dated 21.08.2014 in C.R.P. No. 1509 of 2011 had issued a direction to the Trial Court to dispose of the suits within a period of three months from the date of receipt of a copy of that order. While so, there arises no necessity to determine the age, stability of the suit property.

Furthermore, it is a well settled dictum of the Hon''ble Apex Court that appointment of an Advocate Commissioner cannot be utilized for the purpose of gathering or collecting evidence by other party in any proceedings.

Considering the over all circumstances, I am of the view that the Trial Court has considered the matter in proper perspective and the order of the Trial Court dated 18.08.2015 made in I.A. No. 168 of 2015 in O.S. No. 205 of 2010 does not warrant interference by this Court.

In fine, the Civil Revision Petition stands dismissed. However, a direction is issued to the Trial Court to dispose of the suits within a period of one month from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs.