Veluchamy vs Vekadasamy and Dhanalakshmi

M. Venugopal, J.—The revision petitioner/petitioner/appellant has filed this civil revision petition as against the order dated 15.12.2008 in I.A. No. 90 of 2008 in A.S. No. 31 of 2008 passed by the learned Sub Judge, Virudhunagar, in dismissing the application filed by the revision petitioner under Order 26 Rule 9 of the Code of Civil Procedure, praying for an appointment of an Advocate Commissioner to inspect the suit property and to measure the same with the help of the revenue records and the documents of the revision petitioner and with the assistance of a Surveyor and to submit a report with plan.

The first appellate Court has dismissed the I.A. No. 90 of 2008 praying for appointment of an Advocate Commissioner on the basis that an Advocate Commissioner cannot be appointed to gather evidence to disprove the case of the respondent in respect of the suit property which is not the subject matter of the suit and resultantly, dismissed the same.

Being dissatisfied with the order so passed in I.A. No. 90 of 2008 by the learned Sub Judge, Virudhunagar, the revision petitioner has come forward with this civil revision petition before this Court.

According to the learned Counsel for the revision petitioner, the first appellate Court should have seen that the revision petitioner has not filed an application in order to prove the possession in the suit property and further, the first appellate Court ought to have seen that the assistance of a Surveyor is very much required to survey the land with the help of title deeds and if the property is measured with the assistance of a Surveyor, it will enure to the benefit of disposing the appeal by the first appellate Court and added further, the first appellate Court should have borne in mind of the fact that the Advocate Commissioner can be appointed at any time of the proceedings and since the order of the first appellate Court is against law, the revision petitioner prays for allowing the civil revision petition in the interest of justice.

It is significant to point out that in the affidavit in I.A. No. 90 of 2008 filed by the revision petitioner/ plaintiff, it is specifically averred that the suit properties have been purchased by means of sale deeds as three items and that the revision petitioner/plaintiff is in enjoyment of the same and therefore, the properties are required to be measured in accordance with the records of Sivakasi Tahsildar and sale deeds with the help of a Surveyor and to submit a report and a plan through an Advocate Commissioner.

Before the first appellate Court, in the counter filed by the second respondent for her behalf and on behalf of the first respondent, it is specifically mentioned that in regard to the title of the suit property, there is main dispute in which the documents can be filed to resolve the same and based on documents, a decision can be arrived at in the matter in issue and further, the submission of an Advocate Commissioner''s report will not be of any assistance in regard to the disposal of the appeal and only at the appellate stage, an application for appointment of an Advocate Commissioner has been filed with the view of procrastinating the proceedings and no bona fide reasons have been mentioned for appointment of an Advocate Commissioner and therefore, they have prayed for the dismissal of the said application.

One cannot ignore a candid fact that the revision petitioner/plaintiff has filed a suit praying for a relief of declaration in his favour and also for consequent permanent injunction.

It appears that a counter claim has been filed by the defendants under Order VIII Rule 1 and 6A of the Code of Civil Procedure. It also transpires that the counter claim of the respondents/defendants have been ordered by the trial Court. As on date, the appeal proceedings in A.S. No. 31 of 2008 are pending before the learned Sub Judge, Virudhunagar, for consideration.

Generally speaking, in a suit filed by the plaintiff, he is a dominus litus and further, this is not an universal rule, in the considered opinion of this Court.

At best, an Advocate Commissioner''s report can be taken note of by the first appellate Court along with the other oral and documentary evidence on record. Even if an Advocate Commissioner is appointed, the report filed by the Advocate Commissioner is not binding on a Court of law and a Court is entitled to act independently basing its conclusions on the strength of the documentary and oral evidence on record. It is also an axiomatic fact that a possession has to be proved by a litigating party and not by a Commissioner through his appointment made by a Court of law.

On going through the orders passed by the first appellate Court in dismissing the I.A praying for appointment of an Advocate Commissioner, this Court is of the considered view that based on the facts and circumstances, the order passed by the first appellate Court in dismissing an application for appointment of an Advocate Commissioner cannot be found fault with and this Court is of the considered view that the revision petitioner/plaintiff can establish his case and possession by means of oral and documentary evidence which are already on record and now what remains to be done is only that the same has to be evaluated by the first appellate Court.

In that view of the matter, the revision petition fails and the same is hereby dismissed to prevent aberration of justice. The parties are directed to bear their own costs. Consequently, the connected Miscellaneous Petition is dismissed. Considering the facts and circumstances of the case, this Court as an equitable remedy, directs the first appellate Court to dispose of the A.S. No. 31 of 2008 within a period of three months from the date of receipt of a copy of this order, after providing due opportunities to both parties. The parties are directed to lend their co-operation in regard to the completion of the proceedings and to report compliance.