Madras High Court
Thangalakshmi vs Vaithilingam Pillai on 25 October, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 25.10.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.(MD) Nos.1530 and 1531 of 2021
and
M.P.No.8452 of 2021
Thangalakshmi Petitioner
vs.
Vaithilingam Pillai Respondent
Civil Revision Petitions filed under Article 227 of the Constitution
of India against the Docket orders dated 6.9.2021 passed in I.A.Nos.2
and 3 of 2020 in A.S.No.8 of 2020 on the file of the I Additional District
Judge, Tiruchirappalli.
For Petitioner : Mr.Raguvaran Gopalan
COMMON ORDER
The revision petitions have been filed by the defendant in the
suit in O.S.No.62 of 2017 on the file of the Sub Judge, Thuraiyur,
challenging the docket orders passed by the I Additional District
Judge, Trichy in I.A.Nos.2 and 3 of 2021 in A.S.No.8 of 2020.
2. The said suit was filed by the respondent herein for a
declaration, injunction and recovery of possession in respect of the suit
property. During trial, at the instance of the respondent/plaintiff, an
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Advocate Commissioner was appointed to measure the suit property
and give a report with regard to the physical features. The
Commissioner had filed his report and plan on 19.12.014 and
subsequently, the suit was decreed and declaration sought for by the
plaintiff was granted. The defendant had filed appeal in A.S.No.8 of
2020 before the I Additional District Judge, Tiruchirappalli. Pending
appeal, the defendant had filed two interlocutory applications in
I.A.Nos.2 of 2021 under Section 151 CPC to scrap the Commissioner's
Report and I.A.No.3 of 2021 under Order 26 Rule 9 and (5) CPC for
re-issuance of warrant to the same Advocate Commissioner or any
other Commissioner with a qualified surveyor The Appellate Court, by
docket orders, observed that the said Applications would be taken up
alongwith the Appeal.
3. Learned counsel for the revision petitioner would submit that
the the Advocate Commissioner has measured the property based on
the stones laid by the individual owners of the plots and he had not
made measurements based on the survey stones laid by the Revenue
Department. He would also submit that the petitioner had made
specific objections to the Commissioner's Report, however, the Trial
Court had decreed the suit in favour of the respondent/plaintiff against
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which judgment and decree, the petitioner had filed appeal in A.S.No.8
of 2020 on the file of the I Additional District Judge, Tiruchirapalli and
one of the grounds taken therein is that there is an error in the
Advocate Commissioner's Report and thereby, the petitioner had filed
applications in I.A.Nos.2 and 3 of 2020 to scrap the Commissioner's
Report and to reissue warrant to the same Commissioner with specific
instructions to measure the property once again on the ground based
on the survey stones laid by the Revenue Department. He would
further submit that those petitions were filed much earlier viz., on
3.3.2021 and the respondent had also filed counter affidavit, whereas
the appellate court had wrongly construed it to be a petition filed
under Order 41 Rule 27 CPC as if the petitioner intended to let in
additional evidence and thereby observed that those petitions would be
taken up alongwith the main Appeal.
4. The learned counsel for the petitioner would further submit
that the petitioner had raised his objections to the Advocate
Commissioner even before the Trial Court and that the petitioner had
also made a valid ground for scrapping of the earlier Commissioner's
Report and re-issuance of the warrant and in such circumstances, the
appellate court ought to have reissued the warrant and obtained a
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Report from the Advocate Commissioner and the docket order passed
by the appellate court without deciding with regard to the necessity of
appointment of Advocate Commissioner is erroneous and he would
reiterate that the contentions of the respondent that the application for
appointment of Advocate Commissioner had been filed to let in
additional evidence and thereby it should be considered alongwith the
Appeal is erroneous and he would seek to set aside the order passed
by the Court below and for a direction to the Appellate court to hear
the Applications afresh on merits. In support of his contention, the
learned counsel relied on the decision of this court in
PR.Chockalingam v. M.Pichai (2003-4-LW 77).
5. The learned counsel would further submit that it is not a case
seeking permission to file additional evidence and it is a case where
the petitioner/appellant had questioned the very identity of the
property as per the Commissioner's Report and it would be only
proper for the court to collect materials as to the identity of the
property from the Report of Commissioner to adjudicate the dispute in
the appeal and it cannot be straightway heard while disposing the
appeal. He would also submit that it is not a case where the
Application was filed at the fag end of arguments stage and the
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petitions were pending from the month of March 2020 and on account
of Covid, there was no progress in the case and the
petitioner/appellant is not responsible for the delay.
6. Heard the learned counsel appearing for the petitioner and
perused the materials available on record.
7. A similar issue came up for consideration before this court in
PR.Chockalingam v. M.Pichai (2003-4-LW 77), wherein this court,
after analysing the distinction between the Application filed under
Order 41 Rule 27 and the Application filed under Order 26 Rule 9 CPC
and quoting the said provisions has held as under:-
"10. A reading of the said rule would indicate that it
relates to only letting in additional evidence. The
report of the commissioner is amenable to
objections, which may be filed by both the parties, if
require so. Then again, the parties are entitled to
advance their arguments questioning the report.
The Court need not necessarily accept the report of
the commissioner in toto. More over, calling for a
report even before the appeal is heard is only to
enable the Court to consider the same at the time
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of disposal of the appeal and therefore, the report
by itself cannot be considered as an additional
evidence and the application filed seeking an order
of appointment of commissioner can be brought
within the ambit of Order XLI Rule 27 of the Civil
Procedure Code. ....
From a reading of the above rule, it is clear
that the Court, if it deems fit that a local
investigation to be requisite or proper for the
purpose of elucidating any matter in dispute, may
issue commission. This rule is applicable to all fours
to the appellate Court dealing with the appeal also.
Hence, an application filed under Order XXVI Rule 9
of the Civil Procedure Code cannot be equated to
the application filed under Order XLI Rule 27 of the
Civil Procedure Code. .....
17. An analysis of the above judgments would
lead to an irresistible conclusion that the appellate
Court, while considering the application for
appointment of commissioner, should not order the
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application for the sake of asking. Since the power
could be exercised judicially, the proper application
of mind to the facts of the case is essential before
either ordering or rejecting such application. No
hard and fast rule can be laid down that in all cases
of application filed for appointment of
commissioner, that it should be only heard along
with the appeal and the Court should order the
appointment of commissioner only in the event it
satisfies for such commission during the hearing of
the appeal. While the question of identity of the
property is pleaded, it would be only proper for the
Court to first collect the materials as to the identity
of the property by way of a report from the
commissioner to adjudicate the dispute at the time
of hearing of the appeal.
18. In our case, the application is
filed only under Order XXVI Rule 9 of the
Civil Procedure Code and not under Order XLI
Rule 27 of the Civil Procedure Code. It is
the case of the respondents that the
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property in dispute is comprised in S. NO.
800 and it correlates to Block No. 7 in
Duraisinga Lay Out. The claim of the
revision petitioner is in respect of the
property in Block NO. 8 and it situates at
north of the block to the suit property. The
application for survey commission is filed
for identification of the property further
on the ground that the suit property does
not lie in Duraisinga Lay Out. In view of
the averments, it would be only proper for
the appellate Court to issue survey
commission at the first instance and to get
the report as to the identity of the
property even before the appeal is heard, as
there is no embargo for the appellate Court
to consider an application filed under Order
XXVI Rule 9 of the Civil Procedure Code only
along with the appeal. In view of the above
discussions, I am unable to agree with the
submissions of the learned counsel for the
petitioner that the impugned order is
unsustainable, as the application filed by
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the respondents seeking for appointment of
commissioner ought to have been disposed of
only at the time of hearing of the appeal."
8. In light of the above ratio, this court finds some force in the
arguments of the learned counsel for the petitioner that the Appellate
Court, under the misconception that the petitions were filed under and
Order R1 Rule 27 CPC. Therefore, this court directs that the Appellate
Court shall hear both the parties and pass orders on merits with regard
to the necessity for scrapping the earlier Report and re-issuance of
the warrant to the Advocate Commissioner and there after decide the
appeal in A.S.No.8 of 2020 on merits and in accordance with law. The
civil revision petitions are disposed of accordingly. No costs. The
connected Miscellaneous Petition is closed.
25.10.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
Advocate/litigant concerned.
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A.D.JAGADISH CHANDIRA, J.
Ssk.
To
I Additional District Judge,
Tiruchirappalli.
C.R.P.(MD) Nos.1530 & 1531 of 2021
and
M.P.No.8452 of 2021
25.10.2021.
https://www.mhc.tn.gov.in/judis/
