S.K. Krishnan vs Ambal Traders by Partner (P2), M. Arumugam and Others

S. Rajeswaran, J.—This Revision Petition has been filed against the order dated 17.4.2006, passed in I.A. No. 5557/2006 in O.S. No.

8909/1979, on the file of the XIV Asst.City Civil Court, Chennai.

The 2nd defendant is the revision petitioner before this Court. The suit is filed by respondents/plaintiffs for a declaration to declare the plaintiffs''

title to the suit property and also to restrain the defendants by way of permanent injunction from interfering with the plaintiffs peaceful possession of

the plaint schedule property.

The respondents/plaintiffs state that the 1st plaintiff Thiru Elliah Reddiar (since deceased) was the absolute owner of an extent of 1 acre 87 cents

in Survey No.76, T.S. No. 87, Block No.1, in Ekkattuthangal village, Madras. 97. This property being his ancestral property, the 1st plaintiff

entered into an agreement of sale with the 2nd plaintiff on 27.3.1975 under which the 1st plaintiff agreed to sell the said property to the 2nd plaintiff

or his nominee. Under the terms of the agreement, the 1st plaintiff agreed to allow the 2nd plaintiff to plot out the said land and obtain lay-out and

sell the same to any intending buyers and the 1st plaintiff agreed to receive the sale consideration for each of the plot in instalments either from the

2nd plaintiff or his nominee. On 27.3.1975 the 1st plaintiff as per the terms of the agreement of sale delivered possession of the said land to the

2nd plaintiff. The 2nd plaintiff after obtaining possession of the said ground, plotted out the same into different plots and sold to the intending

purchasers and after receiving the sale consideration executed a sale deed in favour of them. The 3rd plaintiff is the allottee of plot No.40 having

agreed to purchase the same under the lease-cum-sale agreement executed by the 2nd plaintiff. Therefore the plaintiffs submit that they are in

lawful possession and enjoyment of plot No.40 in the capacity of owners/title holders. The 3rd plaintiff subsequently has also put up a

superstructure in August 1979 in the said plot. Thus such being the position, the defendants who have no manner of right whatsoever in the said

property are attempting to interfere with their possession and enjoyment. Therefore the suit has been laid for the above reliefs. The plaintiffs also

have filed a police complaint against the defendants for their unlawful interference.

Defendants 1 and 2 in their written statement and in the additional written statement resisted and refuted the contentions and the claim of the

plaintiffs.

An advocate-commissioner was also appointed at the instance of 2nd defendant and he has also filed a report. For the report filed by the

advocate-commissioner, objections were also filed by the defendants particularly, the 2nd defendant S.K.Krishnan. An application in I.A. No.

5557/2006 was filed by the 2nd defendant/revision petitioner to examine the said advocate-commissioner as a court witness. The said application,

I.A. No. 5557/2006 was rejected by the trial court on 17.4.2006. The trial court after duly considering the facts and circumstances of the case has

held that the commissioner need not be examined as a court witness at this stage as all the parties having filed their objections and the court has to

hear the entire matter before deciding if it is necessary for the court to examine the commissioner as a court witness. It is also held by the trial court

that the petitioner/2nd defendant was also entitled to cross-examine the advocate commissioner with the permission of the court if necessary.

Therefore by holding so, the trial court rejected the application, I.A.Nos.5557/2006. As against that, the 2nd defendant has filed the above

revision petition.

Heard the learned Counsel for the petitioner as well as the learned Senior Counsel appearing for the respondents. I have also gone through the

documents filed in support of their submissions and the judgments referred to by them in support of their submissions.

The learned Counsel for the petitioner submitted that having filed the objections to the report of the advocate-commissioner the revision

petitioner is entitled to examine the commissioner as court witness. Therefore he filed a petition before the trial court under Order 6 Rule 10(2) of

the CPC to examine the advocate commissioner as a court witness. According to him, without examination of the advocate commissioner and by

merely going by the report submitted by him, the trial court would not be able to effectively adjudicate the issue in hand and consequently great

prejudice and loss would be caused to the defendants. He also relied on the the decision reported in 2001(1) L.W. 236 (Rukmani Devi and 4

others v. R.M.Lakshmandoss) in support of his submission. It is his specific case that the advocate-commissioner being the officer of the court

should be permitted to be examined by the party concerned for the proper and effective adjudication of the issue in hand and the rejection of his

case by the trial court is contrary to the letter and spirit of the provisions of law, namely, Order 26 Rule 10(2) of the Code of Civil Procedure.

Per contra, the learned Senior Counsel appearing for the respondents resisted the case of the petitioner/2nd defendant and contended that no

proper reasons have been given by the petitioner for examining the advocate-commissioner. He referred to the petition filed by the petitioner to the

effect to show that the prayer sought for by the petitioner was only to examine the commissioner as a court witness. He also referred to the

provision under Order 26 Rule 10(2) of C.P.C., which is extracted below:

Procedure of Commissioner: (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the

evidence taken by him, shall return such evidence, together with his report in writing signed by him to the court.

(2) Report and depositions to be evidence in suit: The report of the Commissioner and the evidence taken by him (but not the evidence without the

report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the

suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his

report, or as to the manner in which he has made the investigation.

The learned Senior Counsel appearing for respondents further submitted that an advocate-commissioner has to be examined as a court witness

only at the discretion of the court and the plaintiff or the defendant cannot claim it as a matter of right. He also drew my attention to the order

passed by the trial court wherein it is clearly demonstrated that the court below has exercised discretion rightly and held that it is not a right at all

for examining the Commissioner as a court witness in view of the fact that all the parties have filed their objections and the court has to hear the

entire matter before deciding it necessary to examine the Commissioner as a court witness. Moreover, the trial court has held that if necessary the

petitioner/2nd defendant could examine the Commissioner with the permission of the court at a later date. Therefore, according to the learned

Senior Counsel, the petitioner/2nd defendant has not been deprived of the right of examining the Commissioner. Therefore no prejudice has been

caused to the petitioner/2nd defendant so as to invoke the jurisdiction of this Court under Article 227 of the Constitution of India. Therefore it is

contended by the learned Senior Counsel that the revision petition before this Court filed under Article 227 of the Constitution of India is liable to

be dismissed.

In support of his submissions, he relied on the decision reported in 2006(3) TLNJ 1 (Civil) (Gnanaraj v. Bakyalakshmi and Anr.) for the

proposition that under Order 26 Rule 10(2) C.P.C. which is the discretion of the court below to examine the advocate-commissioner as a court

witness. Only after judicial determination of the court below whether the Commissioner has to be examined or not, the court would take a

decision. Therefore, it is not for any party concerned to ask for the examination of an advocate-commissioner as a court witness. While referring to

the decision reported in 2006(3) TLNJ 1 (civil) (cited supra), the learned Senior Counsel submitted that the court below in this case has properly

exercised the discretion in terms of the provisions of Order 26 Rule 10(2) C.P.C., and consequently the impugned order does not suffer from any

error of law apparent on the face of the record warranting exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

I have considered the rival submissions made by the learned Counsel on either side. I am of the view that the court below has rightly exercised

the discretion and held that the stage has not come for the court to examine the commissioner as a court witness. However, liberty has also been

given and the right has also been reserved for the revision petitioner/2nd defendant to examine the commissioner at a later stage with the permission

of the court. That being so, the right of the revision petitioner/2nd defendant is not at all deprived so as to approach this Court under Article 227 of

the Constitution of India. No prejudice has also been caused to the revision petitioner/2nd defendant as rightly contended by the learned Senior

Counsel for the respondents.

Now let me consider the decisions relied on by both the sides.

In 20011 L.W. 236 (cited supra), this Court held that the commissioner''s report can be admitted in evidence without being marked as an

exhibit.

This decision does not lend much support to the case of the revision petitioner.

In 2006(3) TLNJ 1 (Civil) (cited supra), this Court considered elaborately the scope of Or.26 Rule 10(2) CPC.

In the above case an application has been filed for appointment of advocate commissioner, was allowed by the trial court but the trial court

declined to examine the Commissioner as a court witness and directed that the commissioner be examined as a witness on the petitioner side.

Aggrieved by the said order, revision petition was filed before this Court and this Court held as follows:

The position could be summed up as under:

(i) Under Or.26 R.10(2) CPC, the Report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall part of the

record;

(ii) The Court itself could examine the Commissioner and in such cases, the Commissioner is to be invariably examined as a Court Witness;

(iii) When Application is filed by any of the parties to the Suit to examine the Commissioner, it is the discretion of the Court to allow the

Application. But permission should not be withheld arbitrarily. If permission is declined it must be by a reasoned order. When the Court grants

permission to the party to examine the Commissioner, it is the discretion of the Court either to examine the Commissioner as a Court Witness or as

that of the party''s witness;

(iv) In the facts and circumstances of the case, the Court has to judicially determine whether the Commissioner is to be examined as Court witness

or the Party''s Witness;

(v) The contention that in all the instances the Commissioner is to be examined only as Court witness, is unacceptable. Protection is afforded to the

Commissioner from any vexatious examination by either of the party.

The ratio laid down by this Court in the above decision if applied to the facts of the present case, the trial court has declined to examine the

Commissioner as a court witness by giving valid and legally acceptable reasons. Therefore I do not find any infirmity nor illegality in the order of the

trial court warranting interference under Article 227 of the Constitution of India.

It is for the revision petitioner/2nd defendant to file an appropriate application before the court below seeking permission for examining the

commissioner as a witness on his side and not as a court witness. If such an application being filed by the 2nd defendant/revision petitioner, it is for

the court below to consider the same on merits and pass orders in accordance with law.

With the above direction, the Civil Revision Petition is disposed of. No costs. C.M.P. No. 1/2006 is closed.