Sakthivel vs Paianisamy

M. Venugopal, J.—The petitioner/plaintiff has filed this civil revision petition as against the order dated 14.07.2009 in I.A. No. 455 of 2009

in O.S. No. 309 of 2007 passed by the Learned District Munsif, Tiruchencode in dismissing the application filed by the revision petitioner under

Order 26, Rule 9 of Civil Procedure Code, praying for an appointment of an Advocate Commissioner to inspect the suit property and submit his

additional report along with plan.

The trial Court while passing orders in I.A. No. 455 of 2009 has inter alia opined that earlier the Advocate Commissioner has been appointed

for which no objection has been filed and assigning the same reasons praying for reissuance of commission warrant are not based on bonafide

reasons and also that it has been projected to protract the legal proceedings and resultantly, dismissed the application without costs.

According to the learned Counsel for the revision petitioner/plaintiff, the trial Court has committed an error in dismissing the I.A. No. 455 of

2009 filed by the petitioner praying for reissuance of commission warrant and the said order is against law, weight of evidence and materially

irregular one which is liable to be set aside by this Court sitting in revision and moreover, the trial Court without applying its mind the Court has

observed that the petitioner has not filed his objections to Commissioner''s report and plan filed in I.A. No. 971 of 2007 and added further, the

trial Court has commenced the trial about a year ago but the application for warrant has been projected belatedly and moreover, the trial Court has

not borne in mind of a simple fact that the present I.A. No. 455 of 2009 has been filed for measuring the revision petitioner and the earlier I.A. No.

971 of 2007 has only been filed to note down the suit Cart Track and in short, the relief prayed for in I.A. No. 971 of 2007 and I.A. No. 455 of

2009 are materially a different one, but unfortunately, these aspects of the matter have not been appreciated by the trial Court in a proper

perspective, and therefore, prays for allowing the civil revision petition in the interest of justice.

Per Contra, the learned Counsel for the respondent/defendant contends that the revision petitioner/plaintiff has earlier projected I.A. No. 971 of

2007 praying for the appointment of an Advocate Commissioner to note down the suit Cart Track and the revision petitioner/plaintiff has not filed

any objection to the commissioner''s report and later the revision petitioner has projected the present I.A. No. 455 of 2009 when the evidence of

the parties have been complete in the suit proceedings and when the suit has been posted for arguments on 18.04.2009, and on 18.04.2009 the

respondent/defendant has been heard and the matter has been posted for hearing the respondent/defendant on 21.04.2009 and on 21.04.2009

when the main suit has been posted for arguments, at that time the revision petitioner/plaintiff has filed I.A. No. 455 of 2009 and the matter has

been further posted to 24.09.2009 for hearing of the arguments of the revision petitioner/plaintiff, and that the trial Court is rightly dismissed the

said application for the reasons assigned thereto in the order and at this stage this Court may not interfere with the order passed by the trial Court

in I.A. No. 455 of 2009 and prays for the dismissal of the civil revision petition.

This Court has heard the arguments of learned Counsel appearing for the parties and noticed their contentions.

Expatiating his arguments that an Advocate Commissioner can be appointed even at a belated stage and when the ultimate goal and aim of the

Court of Law is to do complete justice to the parties, the procedural requirements are only hand made of justice and there is no embargo in law to

project an application even at a time when the main suit has been posted for arguments, he cites the decision of this Court A. Palaniappan v. K.

Nallasamy and Ors. 2008 (3) CTC 602 wherein it is inter alia held that ""there is no reason to deny relief of remitting warrant to same

Commissioner.

It is to be pointed out that appointment of an Advocate Commissioner is within the discretionary domain and power of a Court of Law and it is

also true to state that exercise of such power under Order 26 Rule 9 can be employed by a Court at any stage of a suit for elucidating any matter

in dispute/controversy. An important aspect that is to be taken note of by a Court of Law is that it is not the object of Order 26, Rule 9 of the Civil

Procedure Code, to assist a party to collect evidence, where the party can get the evidence himself and even as a matter of fact the Court can even

exercise its power suo motu.

As far as the present case is concerned it is not denied that earlier I.A. No. 971 of 2007 has been filed by the revision petitioner/plaintiff for

appointment of Commissioner to measure the suit Cart Track and the petitioner has not filed any objections to the said commissioner''s report

admittedly. After the closure of the evidence of witnesses in the case when the main suit has been posted for arguments on 18.04.2009 the

respondent/defendant has been heard and the matter has been posted for hearing the respondent/defendant on 21.04.2009. Only on 21.04.2009

when the main suit has been posted for arguments, at that time the revision petitioner/plaintiff has filed I.A. No. 455 of 2009 praying for reissuance

of Commission warrant. Though the applications projected by the revision petitioner/plaintiff I.A. No. 971 of 2007 and I.A. No. 455 of 2009 are

entirely different and the reasons assigned in the I.A. No. 455 of 2009 praying for reissuance of warrant has nothing to do with the earlier I.A. No.

971 of 2007 praying for appointment of an Advocate Commissioner, when the matter is ready for arguments at that time the revision petitioner has

projected I.A. No. 455 of 2009 praying for reissuance of Commission warrant which is not to be entertained by Court of Law since the right

accrued to the parties in a given case cannot be sought to be displaced by means of a request for reissuance of commission warrant. It is pertinent

and desirable to dispose of the suit on considering the material available oral and documentary evidence on record and after going through the trial

Court order in I.A. No. 455 of 2009 dated 14.07.2009 this Court comes to the conclusion that this civil revision petition is devoid of merits and

resultantly the civil revision petition fails.

In the result the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The order passed by the trial Court in I.A. No.

455 of 2009 in O.S. No. 309 of 2007 dated 14.07.2009. is confirmed by this Court for the reasons ascribed in this revision. Considering the facts

and circumstances of the case the parties are directed to bear their own costs in this revision. Since in the main suit arguments of plaintiff side is to

be heard by the trial Court, the trial Court is directed to hear the revision petitioner/plaintiff side and after hearing the reply of the

respondent/defendant if any, it shall enter judgment in the suit within a period of 3 weeks form the receipt of copy of this order and to report

compliance to this Court without fail. The parties are directed to lend a helping hand to the trial Court in regard to the completion of the

proceedings. Consequently, M.P. No. 1 of 2009 is closed.