Ramanathan vs Ayyavoo and Others

Honourable Mr. Justice M. Jaichandren

This civil revision petition has been filed against the order, dated 19.8.2009, made in I.A.No.88 of 2009, in O.S.No.78 of 2007, on the file of the Subordinate Court, Pattukkottai, Thanjavur District.

The petitioner herein is the plaintiff in the suit, in O.S.No.78 of 2007. The petitioner had filed the said suit praying for a decree to declare his title, in respect of the suit schedule properties and for a permanent injunction restraining the defendants, who are the respondents herein, from interfering with the peaceful possession and enjoyment of the said properties, by the plaintiff.

During the pendency of the said suit, the petitioner had filed an interlocutory application, in I.A.No.88 of 2009, requesting the trial Court to appoint an advocate commissioner to measure the suit schedule properties and to file a report, along with a plan, with the help of a surveyor. In the affidavit filed in support of the said application, it had been stated that there had been an oral partition between the petitioner and the respondents in the civil revision petition.

It has been further stated that, pursuant to the said oral partition, the petitioner has been in possession and enjoyment of the suit schedule properties. It had also been stated that the petitioner had established a coconut grove in the properties in question and he has been irrigating the said lands by using the water from a bore-well situated in S.F.No.149/17. It had also been stated that the advocate commissioner should file a report, with regard to the fact that the petitioner is irrigating the lands in the 6th item of the suit schedule properties, as well as the lands in S.F.Nos.150/1 and 149/17, by using all electric motor to draw water from the bore-well.

The trial Court had dismissed the interlocutory application stating that it would not be open to the petitioner to gather evidence to prove that he is in possession of the properties in question. The trial Court had also stated that it would not be appropriate to appoint an advocate commissioner in a suit praying for permanent injunction.

Challenging the order of the trial Court, dated 19.8.2009, made in I.A.No.88 of 2009, in O.S.No.78 of 2007, the petitioner has filed the present civil revision petition, before this Court.

The learned counsel appearing on behalf of the petitioner has submitted that the trial Court ought to have allowed the application filed by the petitioner, as the petitioner had only requested for the appointment of an advocate commissioner to measure the properties in question and to file a report and a plan, with the help of an approved surveyor. He had also submitted that the petitioner was not attempting to collect evidence, or to prove his possession, by the appointment of an advocate commissioner. Therefore, the trial Court had misunderstood the real implication of the interlocutory application filed by the petitioner. The petitioner has made the request only to establish his claim regarding the existence of a bore-well and with regard to the fact that he has been irrigating the lands in question using the water from the said bore-well situated in S.F.No.149/17.

He had relied on the following decisions in support of his contentions:

8.1. In A. Sulthan Vs. Mohammed Dasthagir (2008) 6 MLJ 359, this Court had held that it is clear that the Court can grant the relief of appointment of a Commissioner to enable the respective parties and the Court to have a first hand knowledge about the allegations and counter allegations. Even in a bare injunction suit, the appointment of an Advocate Commissioner could be allowed on the basis of the pleadings.

8.2. In Sivagurunathan Vs. Ramalingam (2005) 3 M.L.J. 525), this Court had held that, when the location of the plaintiff''s property and its extent are denied, a Commissioner ought to have been appointed for effectively adjudicating the dispute.

8.3. In Saraswathy Vs. Viswanathan (2002 (2) CTC 199), this Court had held that the object of the appointment of a commissioner is not to collect evidence but for elucidating matters, which are local in character and which can be done only by local investigation, at the place concerned. A commissioner cannot decide the dispute between the parties to the suit. However, his report would help the Court in deciding the dispute. The appointment of a Commissioner can be made, especially, when no prejudice would be caused to the opposite party, by such appointment.

8.4. In K.S. Ganapathy Vs. K.G. Mani (2003) 3 M.L.J.16, this Court had held that the local investigation is to elucidate a point, which is left doubtful on the evidence adduced before the Court. The object of Order 26, Rule 9 of the civil procedure code, 1908, is not so much to collect evidence, which can be taken in Court, but to obtain the evidence, which is peculiar in nature and which can only be had from the place in dispute. However, it is the discretion of the Court to order a local investigation or to deny the same. The Court concerned is not bound to order it in all cases. The discretion has to be exercised in a judicious and sound manner and not whimsically or capriciously. Where the controversy of possession, between the parties concerned, relates to the area of the land or the identification of location of an object or land, local investigation is essential, requisite, necessary and proper, at an early stage of the suit. The report of the advocate commissioner can be used only for the limited purpose of appreciating the evidence, which the parties have let in, with reference to what the person saw on the site when he inspected the property. The report is not, in any way, binding on the Court and the Court can arrive at its own conclusion even at variance of such report.

Per contra, the learned counsel appearing on behalf of the respondents had submitted that the trial Court was right in dismissing the interlocutory application filed by the petitioner. The petitioner had made the request for appointment of an advocate commissioner only to collect the necessary evidence to prove his possession, in respect of the suit schedule properties. Such an attempt by the petitioner to collect evidence, by the appointment of the advocate commissioner, to prove his claim, especially, in respect of his possession and enjoyment of the properties in question, is not permissible in law. Therefore, the civil revision petition, filed by the petitioner, is liable to be dismissed.

The learned counsel appearing for the respondents had relied on the following decisions in support of his contentions:

10.1. In Elango Vs. Kasthuri (2009 (5) CTC 706), this Court had held that the Court may appoint an Advocate Commissioner in any suit, when it deems a local investigation is required for the purpose of elucidating any matter in dispute. But an Advocate Commissioner cannot be appointed to note down the factum of possession, under the pretext of noting down the physical features.

10.2. In Chandrasekaran Naidu and Others Vs. V. Doss Naidu, , this Court had held that it would not be appropriate for the Court concerned to appoint an Advocate Commissioner to collect evidence in favour of the party seeking for such appointment. The claim of the party, with regard to the factum of possession of a property in question, should be proved only by adducing appropriate evidence. It cannot be done by collecting the necessary evidence, by way of a request to appoint an advocate commissioner. The power of the Court, under Article 227 of the Constitution of India, is to be exercised by the Court in its discretion and it cannot be claimed as a matter of right. To prove the fact with regard to the possession, the party making the claim should prove his possession of the property concerned by leading in evidence, based on the issues framed by the Court concerned.

10.3. In Chinnathambi Vs. Anjalai (2006 (5) CTC 494), this Court had held that the Commissioner cannot be appointed for a local investigation, where the possession of the property, sought to be inspected by the Commissioner, is in dispute. The court cannot appoint an Advocate Commissioner to assist a party to the suit in collecting the evidence, in respect of his claim relating to the possession of the property.

10.4. In Mrs. Jabeen Taj Vs. Mrs. M. Parveen Banu and M. Javeed Khan, this Court had held that, in a suit for declaration of title and for permanent injunction, the request for an appointment of an Advocate Commissioner ought to be rejected, when there is a dispute regarding the identity of the property.

10.5. In M/S. Benz Automobilies Private Limited Vs. Mohanasundaram (2003) 3 M.L.J.391), this Court had held that the revision petition against an interlocutory order, which does not dispose of the suit, is not maintainable, especially, after the amendment of the civil procedure code, 1908, with effect from 1.7.2002.

In view of the submissions made by the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the respondents, and on a perusal of the records available, and in view of the decisions cited supra, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to set aside the order of the trial Court, dated 19.8.2009, made in I.A.No.88 of 2009, in O.S.No.78 of 2007.

It is a well settled position of law that a party to a suit cannot collect evidence, in respect of his claim, by making a request to the Court concerned for the appointment of an advocate commissioner, especially, when it involves a question regarding the possession of the properties in dispute.

From the decisions cited by the learned counsel appearing for the respondents, it is clear that an advocate commissioner cannot be appointed for collecting evidence in favour of a party to prove his claims. Further, an advocate commissioner cannot be appointed to give an opinion, with regard to the possession of the properties in dispute. In such view of the matter, the contentions made on behalf of the petitioner cannot be countenanced. Therefore, the civil revision petition filed by the petitioner is devoid of merits. Hence, it is dismissed. However, it goes without saying that it would be open to the petitioner herein, who is the plaintiff in the suit, in O.S.No.78 of 2007, to prove his claim, with regard to the possession of the properties in question, by adducing the necessary evidence before the trial Court, in the manner known to law. The subordinate court, Pattukkottai, is directed to dispose of the suit, in O.S.No.78 of 2007, on merits and in accordance with law, within a period of six months from the date of receipt of a copy of this order. No costs. Connected M.P.(MD) No.1 of 2009 is closed.