Madras High Court
Nethasi vs Navappan on 29 November, 2021
C.R.P.No.2856 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.R.P.(PD).No.2856 of 2015
and
M.P.No.1 of 2015
Nethasi ... Petitioner
Versus
1.Navappan
2.Ayyanar
3.Valarmathi ... Respondents
PRAYER:Civil Revision Petition filed under Article 227 of the Constitution
of India, praying to set aside the fair and decretal order dated 21.04.2015
made in I.A.No.975 of 2014 in O.S.No.382 of 2009 on the file of the
Additional District Munsif, Villupuram.
For Petitioner : Mr.C.Munuswamy
For Respondents : No appearance
ORDER
The Revision petitioner is challenging the order passed in
I.A.No.975 of 2014 in O.S.No.382 of 2009 on the file of the Additional
District Munsif Court, Villupuram.
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C.R.P.No.2856 of 2015
2. The petitioner has preferred this revision contending that he has filed
a suit for declaration and other consequential relief against the respondents /
defendants, in which, the respondents have also filed their written statement.
Thereafter, the trial also began by examining the 's witnesses. At that time, the
1st defendant / 1st respondent herein filed application in I.A.No.975 of 2014
seeking appointment of Commissioner to note down the physical feature of
the suit property with the help of a Surveyor and the said application was
objected. In spite of that, the trial Court allowed the same by appointing an
Advocate Commissioner. Aggrieved by the said order, he has preferred this
revision petition.
3.At the time of arguments, the learned counsel for the revision
petitioner submitted that, after trial began, in order to collect the evidence, the
1st defendant filed the application to appoint a Commissioner, which should
not be entertained. For that, he relied the following authorities.
(i). This Court's judgment in the case of Mr.T.K.Krishnamurthy
Vs. Tamil Nadu Water and Drainage Board, reported in 2006 (5) CTC 178,
where in it has been held as follows:
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C.R.P.No.2856 of 2015
“ 9. The report of the Advocate Commissioner alone can
never be the basis for deciding the suit as commissioner
should not be appointed to gather evidence to prove the case
of the parties. Parties should prove their case by themselves by
letting in legally acceptable evidence and the report of the
Commissioner can only aid the Court in evaluating the
evidence to come to a just conclusion. But in this case
Advocate commissioner was sought for and appointed to
gather the evidence to disprove the case of the revision
petitioner in respect of a property which is not subject matter
of the Suit .”
(ii) In another case, this Court in the case of K.M.A.Wahab and 5
others Vs. Eswaran and another reported in 2008(3) CTC 597, it is held as
follows:
“6.This Court has carefully considered the arguments
put forth on either side. Order 26, Rule 9, C.P.C. States as
follows:
“9.Commissions to make local investigation:- In
any Suit in which the Court deems a local investigation to be
requisite or proper for the purpose of elucidating any matter
in dispute, or of ascertaining the market-value of any
property, or the amount of any mesne profits or damages or
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C.R.P.No.2856 of 2015
annual net profits, the Court may issue a commission to such
person as it thinks fit directing him to make such investigation
and to report thereon to the Court:+
Provided that, where the State Government has made Rules as
to the persons to whom such commission shall be issued, the
Court shall be bound by such Rules.”
In the above referred cases, it is held that Advocate Commissioner should not
be appointed to cover the evidence to prove the case of the parties.
4. By way of reply, the learned counsel for the respondents submitted
that he has not approached the Court by filing the Commissioner application,
in order to collect the evidence as alleged by the revision petitioner. On the
other hand, he sought for appointment of Commissioner only to note down
the house situated in Item No.6 of the suit scheduled properties, which is
more than 20 years, based upon the oral sale with one Murugesan and his
daughter, but, this fact was not mentioned in the plaint. In order to show the
existence of physical features in item No.6. he sought for appointment of
Commissioner.
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C.R.P.No.2856 of 2015
5. Considering both sides submissions, and on a perusal of the records,
it reveals that the respondents filed Commissioner petition under Order 26
Rule 9 & Section 151 of CPC to appoint a Commissioner, and to note down
the house property with the help of a Surveyor. It is true that, in Item no.6 of
the suit Scheduled property in the plaint, it is mentioned as a vacant site. On
the other hand, the 1st defendant contended that there is a house situated
within 0.2 cents measurement and the same can be established with the help
of a Commissioner whose report, would not be deemed as a collection of
evidence. On the other hand, the report would minimise much of the Court
work as to adjudicate the issue between the parties fairly.
6.Therefore, considering these facts, the trial Court rightly allowed this
application, which does not warrant any interference by this Court. The
authorities relied by the petitioner are not applicable for the reasons stated
above in relation of the facts and circumstances of the case.
7.Hence, this revision petition is dismissed as devoid of merits. The
suit is in the year 2009. Therefore, the trial Court is directed to dispose of the
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C.R.P.No.2856 of 2015
suit itself within a period of three months from the date of receipt of copy of
this order. Consequently, connected miscellaneous petition is closed. No
costs.
29.11.2021
Index : Yes / No
Speaking Order:Yes/No
rri
1.The Section Officer, VR Section,
High Court of Madras.
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C.R.P.No.2856 of 2015
T.V.THAMILSELVI, J.
rri
C.R.P.(PD).No.2856 of 2015
and
M.P.No.1 of 2015
29.11.2021
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