S. Suruli vs M. Sundharam

S. Palanivelu, J.—The Petitioner is the plaintiff in O.S. No. 580 of 2006, on the file of the District Munsif Court, Theni.

He filed a suit for mandatory injunction, recovery of possession and for permanent injunction as well. Pending trial of the suit, he filed an interlocutory application in I.A. No. 580 of 2006, for appointment of an Advocate Commissioner to inspect the suit property with the help of Taluk Surveyor, to note down physical features and also to file a report with plan. But in the affidavit, he has stated that in the suit property, the defendant has encroached certain portions and constructed a wall, discharged drainage water into the suit property and has also opened a window towards the suit property in the wall, in such a way to prejudice the privacy of the plaintiff.

The Petition was strongly opposed by the respondent/defendant by stating that there is no encroachment in the suit property and the wall lies within the property owned by the defendant and that already a survey in this regard was conducted in the presence of both the parties and the petitioner was agreeable for the resolution taken on that occasion. Hence the petition has to be dismissed.

The learned Principal District Munsif, Theni, dismissed the application, by observing that in the plaint schedule, particulars of the encroachments with reference to the measurements have not been mentioned and hence there is no necessity to appoint any Advocate Commissioner and the portions referred to by the petitioner could not be identified either by the court Commissioner or by the Taluk Surveyor and that it could not be said that the Commissioner''s report will assist the court for reaching a decision. It is further added that the petition has been filed for elongating the proceedings.

The learned counsel for the petitioner Mr. V. Sundaraj would submit that the plaintiff having filed a suit for recovery of possession and mandatory injunction, the appointment of an Advocate Commissioner is very much essential and that he may be appointed. Repelling the above said contention, the learned counsel for the respondent Mr. K. Appadurai would submit that the reasons furnished by the court below are unassailable and it reflects the real issue arisen in the matter and that there is no necessity for appointment of an Advocate Commissioner.

The learned counsel for the petitioner would garner support from two decisions of this Court in Sivagurunathan v. Ramalingam and Ors. reported in (2005)3 MLJ 525. The learned Judge has taken a view that when the location and extent of the property are denied, it would necessitate the appointment of an Advocate Commissioner. The relevant portions of the above said judgment are extracted hereunder:

When the location of the plaintiff''s property and the extent is denied, Commissioner ought to have been appointed for effectively adjudicating the dispute. Report of the advocate Commissioner and the plan drawn to scale would considerably reduce the oral evidence which aspect was not taken into consideration by the lower Court. (Para 11)

It would clarify the location and extent in which the plaintiff is in possession and would explain any doubtful points of evidence on record. The object of local investigation is to obtain evidence which could be based on only from the spot and the inspection. Report of the advocate Commissioner would enable the Court to properly and correctly understand and assess the evidence on record in resolving the contentious points." (Para 12)

In a decision in S. Palanisamy Gounder v. N. Palanisamy and three Ors. reported in 2007 (1) CTC 611, this Court is of the view that even though a formal application filed by any of the parties for appointment of an Advocate Commissioner, Order 26 Rule 9 of CPC empowers appointment of an Advocate Commissioner for local investigation, even if the prayer for such appointment has not come from the parties and in such case, the court itself can appoint an Advocate Commissioner and that the paramount object of appointing Commissioner is to guide Court in the process of decision making and not to use as basis of decision.

It is of course true that the plaint schedule does not show that what are the portions encroached by the defendant and what is the measurement of the wall constructed by the defendant in the suit property and other features available therein so as to enable the court to grant the relief of recovery of possession and mandatory injunction. But the plaintiff has definitely described about the lie of the property, by specifically mentioning the four boundaries within which the property ad-measuring 62 1/4 feet east-west, 16 1/2 ft north-west in which a house and vacant site are available. Even if an Advocate Commissioner appointed to note down the physical features available in the suit property and by noting down those aspects, the rights of the respondent will not be prejudiced. If the Advocate Commissioner is assisted by a qualified Taluk Surveyor, then it will enable the court to approach the matter in issue in a proper way. In the considered view of this Court, the appointment of an Advocate Commissioner is inevitable in this case. In such opinion, the order passed by the court below is liable to be set aside and accordingly set aside.

In the result, the Civil Revision Petition is allowed and the learned District Munsif, Theni is directed to dispose of the suit in O.S. No. 580 of 2006, as expeditiously as possible. Consequently, connected Miscellaneous Petition is closed. No costs.