A.Palanivel vs S.Thangaraj
2022 Latest Caselaw 7548 Mad

                                                            1

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 11.04.2022

                                                        Coram

                                     The Hon'ble Mr. Justice C.V.KARTHIKEYAN

                                               C.R.P.PD.No.1850 of 2017
                                                         and
                                                C.M.P.No.8890 of 2017


                     A.Palanivel
                                                                ... Petitioner/Petitioner/Plaintiff

                                                            Vs.

                     1. S.Thangaraj

                     2. A.Ponnuvel
                                                       ...Respondents/Respondents/Defendants

                     Prayer:- Civil Revision Petition filed under Article 227 of Constitution
                     of India, to set aside the docket order passed in against order dated
                     17.11.2016 passed in I.A.No.25 of 2014 in O.S.No.189 of 2012 on the
                     file of the Additional District Munsif Court at Salem.



                                     For Petitioners   ..       Mr.R.Nalliyappan

                                     For R1            ..       Mr.V.Sekar



https://www.mhc.tn.gov.in/judis
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                                                        ORDER

The revision petitioner is the plaintiff in O.S.No.189 of 2012 on

the file of the II Additional District Munsif Court, Salem. That suit was

filed for declaration of title and for injunction. The entire issue surrounds

a particular pathway. Seeking a decree of permanent injunction over the

very same pathway, there was an earlier suit filed by the defendant in

O.S.No.398 of 2007. In that particular suit a Commissioner had been

appointed and the Commissioner had forwarded his plan and report. That

particular suit travelled before the First Appellate Court and finally came

up to this Court in S.A.No.193 of 2014 and a judgment was passed by a

learned Single Judge of this Court on 20.09.2021, adverse to the interest

of the present revision petitioner.

2.In O.S.No.189 of 2012 filed by the petitioner, an Advocate

Commissioner had been appointed in I.A.25 of 2014, with warrant to

inspect the particular pathway. Questioning that particular order, the

respondents herein filed C.R.P.No.1757 of 2014. A learned Single Judge

of this court by an order dated 05.06.2014 had dismissed the said

Revision Petition.

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3.Thereafter the learned II Additional District Munsif, Salem had

taken on file I.A.No.25 of 2014 and an order was passed on 17.11.2014,

which is held as follows,

"Commissioner plan and report u/r 83 CRP not filed. Time extended, Hence petition closed under Order 26 Rule 18 CPC".

4.Questioning the aforementioned order the Present Revision

Petition had been filed by the petitioner/plaintiff.

5.Heard Mr.R.Nalliyappan, learned counsel for the revision

petitioner / plaintiff in the suit and Mr.V.Sekar, learned counsel for the

respondents / defendants in the suit.

6.It has been contended by Mr.V.Sekar, learned counsel for the

first respondent that the issues which arise in the suit have been

examined and attained finality in S.A.193 of 2014 and therefore,

prosecuting the suit further in O.S.No.189 of 2012 would be an exercise

in futility. However, this contention is very strongly refuted by https://www.mhc.tn.gov.in/judis

Mr.R.Nalliyappan, learned counsel for the revision petitioner who

pointed out that the suit is for declaration of title and further a learned

Single Judge of this Court had also appreciated that a Commissioner is

required to inspect the property and had therefore passed necessary

orders and had dismissed the Revision Petition filed by the respondents

herein in C.R.P.No1757 of 2014 by an order dated 05.06.2014. It had

therefore been contended that the issues are alive and that they have to be

examined and the proper procedure which has to be followed would be to

inviting the parties to graze the witness box and adduce evidence and

produce documentary evidence to substantiate their rival claims.

7. The order passed by the II Additional District Munsif, Salem,

closing the application, which had been allowed earlier in manner known

to law has to be interfered with. If Order 26 of CPC had been examined,

then the II Additional District Munsif, Salem would not have passed such

an order. A Commissioner is appointed under Order 26 Rule 9 CPC to

make local investigation. The first and original purpose for which a

Commissioner was sought to be appointed was to examine witnesses.

There may be witnesses, who may not be in a position to come over to

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the Court to adduce evidence and therefore, it was thought prudent to

appoint a Commissioner to record such evidence and forward such report

back to the Court for appreciation.

8. Thereafter, the concept has been widened to appoint

Commissioner for local investigation, whenever it was felt that

knowledge of the lay of land would be advantageous to the Trial Judge in

examining the issues before the Court. This was particularly required in

view of the nature of suits relating to immovable property and vexatious

questions of physical structures put up and not put up and physical

structure demolished and questions relating to the same have come up

before the Courts.

9. In the instant case, the Commissioner had been appointed under

Order 26 Rule 9 CPC.

10. Order 26 Rule 9 CPC is as follows:-

“9. Commissions to make local investigations.— In any suit in which the Court deems a local investigation to be requisite or proper for the purpose https://www.mhc.tn.gov.in/judis

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 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.”

11. Order 26 Rule 10 CPC, provides that the Commissioner after

such local investigation, should reduce to writing the evidence taken by

him and report such evidence together with his report. This is an aspect

with respect to the physical features of a particular place where local

investigation has been done.

12. Order 26 Rule 18 CPC touches upon a different aspect

namely, where the Commissioner had been issued warrant to examine

witnesses. Order 26 Rule 18 CPC is as follows:

“18. Parties to appear before Commissioner.— (/) Where a commission is issued under this Order, the Court shall direct that the parties to the

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suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.”

13. If the parties do not appear before the Commission, then under

Order 26 Rule 18-B which had been inserted in the year 1976 by the

Amendment Act, 1976, the date shall not be extended except for reasons

to be recorded. This particular provision cannot be put in play where

Commissioner had been appointed for verification of a particular

property. If the Advocate Commissioner does not make such physical

verification, then the warrant issued to the particular Commissioner

should be recalled and the warrant can be re-issued to another

Commissioner. This again can be done only when a report had not been

filed.

14. If a report had been filed then there cannot be a question of re-

issuing the warrant unless the earlier report is scrapped by the Court.

The procedures are inbuilt in the Rules. But closure of an application is

not contemplated in the provision.

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15. I would therefore interfere with the order under Revision and

set aside the same and direct the II Additional District Munsif, Salem to

recall the warrant issued to the particular Commissioner and re-issue the

same to another Advocate Commissioner with specific directions to

execute the warrant and file a report before the Court. Thereafter, let the

matter proceed in manner known to law.

16. With the above said observations, the present Civil Revision

Petition is allowed. No order as to costs. Consequently, connected Civil

Miscellaneous Petition is closed.

17. Since both the parties have already suffered owing to the delay

of the Commissioner not even inspecting the property and not filing any

report, it would only be appropriate that if at all the warrant is issued to

the fresh Commissioner, a time limit of maximum of 60 days for

executing the warrant must be given to the said Advocate Commissioner

and thereafter trial is to commence and end on or before 31.12.2022.

11.04.2022 Internet:Yes/No Index:Yes/No mn/smv To The II Additional District Munsif, Salem.

https://www.mhc.tn.gov.in/judis

C.V.KARTHIKEYAN,J.

mn/smv

C.R.P.PD.No.1850 of 2017 and C.M.P.No.8890 of 2017

11.04.2022

https://www.mhc.tn.gov.in/judis