Vestas RRB (India) Limited vs Anulatha

M. Venugopal, J.—The Petitioner/Respondent/Defendant has filed the present Civil Revision Petition as against the order dated 06.07.2009

in I.A. No. 335 of 2007 in O.S. No. 37 of 2006 on the file of Learned Sub Judge, Poonamallee.

The Respondent/Petitioner/Plaintiff has filed I.A. No. 335 of 2007 as per Order 26 Rule 9 of CPC praying for issuance of an order in remitting

back the warrant to the Advocate Commissioner Mr. B. Thiyagarajan to revisit the suit property, to investigate and submit a detailed report with

the help of Taluk Surveyor as to whether the suit property is enclosed by the compound wall of the Revision

Petitioner/Respondent/Defendant/Factory or not etc.

The trial Court, while passing order in I.A. No. 335 of 2007 in O.S. No. 37 of 2006, dated 06.07.2009, has among other things observed that

''the original suit has been filed by the Respondent/Plaintiff for the relief of declaration and injunction and further that in appointing the Advocate

Commissioner and requiring him to file a Report and Plan to find out as to whether the compound wall in the suit property is situated within the suit

boundary would not create any legal impediment and resultantly, allowed the application in the interest of justice.

The Learned Counsel for the Revision Petitioner/Defendant submits that an Advocate Commissioner has already submitted his report in I.A.

No. 261 of 2006 in O.S. No. 37 of 2006 and in the said report, the Commissioner has observed as follows:

On the western side of the Defendant''s extention property, there is a compound wall ending at part on the north, which is denoted as ''A'' in the

rough sketch. From part ''A'' I had measured towards east to a length of 164 feet it ends as part ''B''. From part ''B'' I measured up to the length of

94 feet which is part ''C''. The BCD is the suit property.

The suit property is vacant land surrounded on the north by: Metro Water land, south by: Defendant''s land east by: Defendant''s land on the west

by Metro Water land. There is a big compound wall from part B to C. From part B to E there is a brick compound wall raised up to 3 feet height

and from part E to C the compound wall raised up to 5 feet height. Bricks and cement bags are seen in the suit property. From part ''A'' to ''B''

constructed foundation with rubble stones. Such are the physical features of the suit property.

Therefore, when the Advocate Commissioner has noted down the physical features of the suit property for the second time the very same

Commissioner need not be appointed to investigate and to report whether the compound wall of the suit property is situated within the suit

property or otherwise.

As per Order 26 Rule 9 of the CPC Code, a Court of Law is empowered to issue a commission during the pendency of the suit to conduct

investigation and submit a report elucidating any matter in dispute or to ascertain the spot fact situation.

In Law the report of the Commissioner is part of case record. The examination of Commissioner is essential when either party disputes the

veracity of the report.

Generally, an issuance of second commission for a roving enquiry at the fag end of the completion of the suit is to be refused.

Evidence of the Commissioner is not binding on a Court of Law. Also, the report of the Commissioner is to be utilized as an aid to the trial

Court in arriving at the conclusions.

Unless a Court of Law has recorded its finding that the report of earlier Commissioner is unsatisfactory, the second Commissioner for the same

purpose cannot be appointed.

Where the Commissioner appointed in the case has furnished a detailed report, without considering the same, the Court will not appoint

another Commissioner.

The object of appointment of an Advocate Commissioner for the purpose of local inspection/investigation is not aimed to collect evidence, but

to obtain evidence.

Where the Commissioner exceeded his jurisdiction instead of submitting a factual report, records findings, the report of the Commissioner will

not be accepted and has to be eschewed for consideration.

The Commissioner cannot decide the question of improvement made by the Defendant. A party can counterman the evidence of

Commissioner''s report by giving any other evidence. Added further, a Court cannot delegate its judicial functions to an Advocate Commissioner.

Moreover, the appointment of an Advocate Commissioner under Order 26 Rule 9 of CPC is a discretionary one. The purpose of an Advocate

Commissioner is to obtain evidence which from its peculiar nature can only be had on the spot with a view to elucidate any point which is left

doubtful on the evidence produced before Court.

It is to be pointed out that originally when the Commissioner has been appointed at the time in the application in I.A. No. 261 of 2006, the

prayer sought for has been only to note down the physical features of the property. Subsequently, after the filing of the counter in I.A. No. 261 of

2006 the Respondent/Plaintiff has come out with an I.A. No. 335 of 2007 seeking permission of the trial Court to appoint the very same Advocate

Commissioner who filed earlier report to investigate and to find out whether the compound wall has been situated in the suit property or not.

Admittedly, the trial has not commenced in the main suit and Issues have not been framed based on the pleadings. Already, this Court has

dismissed the CRP No. 2318 of 2009 filed by the Petitioner. The Respondent/Plaintiff has to amend the Plaint before the trial Court. Thereafter,

the Defendant is to file the additional written statement as the case may be. Later, it is the duty of the trial Court to frame necessary Issues on the

basis of earlier pleadings and on subsequent pleadings both on questions of Fact as well as on Law.

When the Advocate Commissioner has filed his report on 10.04.2006 in I.A. No. 261 of 2006, then, this Court opines that the subsequent

prayer for appointment of the very same Advocate Commissioner to investigate as to whether the compound wall has been raised in the property

etc., cannot be asked for, since in the considered opinion of this Court, it is open to the Revision Petitioner to examine the Commissioner as per

Order 26 Rule 10 of CPC and at the time, the Commissioner is being examined, then, it is open to the opposite party to cross examine him

touching upon the contents of his report. There is also possibility of re-examination of the Advocate Commissioner, when the suit is taken up for

trial.

In as much as the prayer sought for in I.A. No. 335 of 2007 in O.S. No. 37 of 2006, requiring the trial Court to appoint the very same

Advocate Commissioner to investigate as to whether the compound wall has been raised within the boundary of the suit property etc., is a

premature one and also it is an otiose one, for the simple reason the stage has not been set for examining the Advocate Commissioner to elucidate

upon the matter touching upon his report. In that view of the matter, the Civil Revision Petition is allowed.

In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. Consequently, the order passed by the trial Court in

I.A. No. 335 of 2007 in O.S. No. 37 of 2006 on the file of Learned Sub Judge, Poonamallee, is set aside. The dismissal of the present Revision

will not preclude the Respondent/Plaintiff in moving an Interlocutory Application at the appropriate point of time seeking the aid of surveyor to

identify the Encroachment in the manner known to law and in accordance with law. Consequently, connected Miscellaneous Petition is closed.