Madras High Court

K.Sellammal vs M.Valarmathy on 16 June, 2022

                                                                       C.R.P(MD)No.1358 of 2017

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated: 16.06.2022

                                                        CORAM:

                                     THE HONOURABLE MR.JUSTICE B.PUGALENDHI

                                               C.R.P(MD)No.1358 of 2017
                                                         and
                                                CMP(MD)No.6686 of 2017


                1.K.Sellammal

                2.K.Sowndarajan                                   ... Petitioner
                                                        Vs


                1.M.valarmathy

                2.K.Santhy

                3.M.Tamizharasi

                4.M.Elaiyaraja                                     ... Respondents



                PRAYER: Civil Revision Petition is filed under Article 227
                of the Constitution of India, to set aside the order passed
                in I.A.No.167 of 201 in O.S.No.61 of 2017 dated 17.02.2017
                on       the       file   of    the   Principal   District   Munsif    Court,
                Kumbakonam by allowing this civil revision petition.


                                   For Petitioner       : Mr.P.Yasmin Begum
                                   For Respondents      : Mr.A.Saravanan



                1/12



https://www.mhc.tn.gov.in/judis
                                                                          C.R.P(MD)No.1358 of 2017

                                                         ORDER

The petitioners are the defendants in O.S.No.61 of

2013. They have filed the present civil revision petition

as against the fair and decreetal order passed by the

Principal District Munsif Court, Kumbakonam in I.A.No.167

of 2017 in O.S.No.61 of 2017.

2.The respondents filed a suit for permanent injunction

with regard to the suit property and also has taken out an

application for appointment of Advocate Commissioner under

Order 26 Rule 9 of CPC. The said application was allowed by

the trial Court. Aggrieved over the same the present civil

revision petition has been filed.

3.Heard the learned Counsel on either side and perused

the materials placed on record.

4.The learned Counsel for the petitioners/defendants

submits that the suit is filed for bare injunction and in

the suit for bare injunction, the Court ought not to have

appointed an Advocate commissioner. The learned Counsel

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

also referred to the pleading in I.A.No.167 of 2017,

wherein, the respondents / plaintiffs took a plea that to

have a clear picture, it is just and necessary to appoint

an Advocate / Commissioner, for inspection of the suit

property in order to prove the plaintiffs' possession,

enjoyment and extent of land possessed by them.

5.By referring the above pleadings, the learned Counsel

for the petitioners submits that the application was taken

out for appointment of Advocate Commissioner, to prove the

plaintiffs' possession and enjoyment and for proving the

possession, the plaintiffs are not entitled for appointment

of Advocate/ Commissioner, however, the trial Court has

wrongly allowed the application. The learned Counsel also

pointed out that the plaintiffs have not mentioned the

measurement in the suit schedule property and therefore,

appointment of Advocate Commissioner is of no use.

The petitioner has also relied the following judgments;

(i)Jagadeswari Vs Kandasamy and Others, reported in

2014 – 5 L.W.361, wherein this Court has held as follows:

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

“10.1. In the decision reported in 2008 (3) CTC 597, K.M.A. Wahab and others v. Eswaran and another, it was held that as far as the factum of possession is concerned, Court alone could gather evidence through parties and it cannot entrust the matter to Advocate Commissioner to collect the evidence. It is appropriate to incorporate paragraph 6 of the said decision:

                                              6.This          Court           has            carefully
                                       considered       the      arguments         put       forth    on
                                       either     side.       Order       26,       Rule      9,     CPC
                                       states 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 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

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

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.

It is evident from the above said provisions of law that a Court may appoint a commissioner in any Suit where it deems a local investigation to be requisite for the purpose of elucidating any matter in dispute. It is necessary to point out in the affidavit filed in support of I.A.No.697 of 2006, it is stated by the respondent therein that he is alone in possession by cultivating the suit property and only to seek to find out the factum of possession, he sought for appointment of the Advocate- Commissioner under the pretext of taking of the physical features indirectly. Such reasons ought to have been rejected by the trial Court as untenable. As far as the factum of possession is concerned, the Court alone gather

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

evidence through the parties and it cannot entrust the said matter to the Advocate-Commissioner to collect the evidence. As held in the judgment reported in Jabeen Taj v M.Parveen Banu, 2005(3) MLJ 24, in as much as there is no dispute with regard to the identity of the property, the Trial Court has no reason to appoint the Advocate-

Commissioner. Similarly, in the other judgment reported in Chandrasekaran and 6 others v. V. Doss Naidu, 2006 (2) LW 159, it is held that though remuneration is paid by the party, who sought for appointment of the Advocate-

Commissioner, as such no prejudice will be caused to the other side, is not at all relevant factor for appointment of the Advocate-Commissioner.”

(ii)The Principal, St.Patrick School and College,

Cresent Road, Gandhi Nagar, Adayar, Chennai – 20 Vs.

Amaravathi (deceased) and others [CRP.No.2503 of 2009,

dated 21.10.2009];

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

“6.He also presses into service the decision in Puttappa Vs Ramappa, 1996 (2) Kar LJ 70, where it is held as follows:

                                  “      ... ... ...          Under       Order        26,    CPC,      a
                           Commissioner        can       be     appointed        to        make    local

investigation to investigate the facts or other materials which are found in the property and to make a report in regard to that matter to the Court. In a suit for injunction the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner who cannot find out as to who is in possession of the property. Accordingly, the Lower Court was right in rejecting the Application'

In the aforesaid decision, it is held that 'A Commissioner will not be in a position to determine the question as to who is in possession of the property when there is dispute between the parties regarding the same. The Court will have to decide the matter on the basis of the evidence to be adduced by the parties. It is not the function of the Commissioner to determine or to report to the Court as to who is in possession of the same.”

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

(iii)Thangaraj Vs Pappathi reported in 2014 (2) CTC 68,

wherein this Court has held as follows:

“5.If at all the revision petitioner himself is not confident as to where the boundary line between the suit property and the adjacent poramboke land lies, he ought to have filed the suit for demarcation of the boundary and not fir bare injunction. When the failure to give the boundaries of the suit property was made as a ground for holding that the revision petition under could not have been in possession of the suit property, such a finding could not be sought to be nullified by seeking appointment of a Commissioner to fix the boundary after measuring the suit property. If at all there is any defect in the plaint, the revision petitioner could have very well sought the permission of the Court to withdraw the suit and file a fresh suit projecting the absence of proper description of the suit property as formal and technical defect. Without doing it, the revision petitioner has chosen to indirectly convert the bare injunction suit into one for identifying and fixing the boundary of the suit property. The learned Lower Appellate Judge has rightly held that the Application could not be maintained in view of the fact that already a

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

Commissioner appointed by the trial Court had visited the suit property and submitted a report and plan, which were marked as Exs.C1 and C2.”

6.The learned Counsel for the respondent submits that

the suit was filed for permanent injunction that the

respondents/plaintiffs property has been occupied by the

defendants. The defendants were issued with patta in the

year 1993, wherein the measurement has been specifically

measured in the patta and the boundaries are also mentioned

in the suit schedule and therefore, the contention of the

petitioners is not correct. The learned Counsel further

submits that the pleading found in paragraph No.13 of the

affidavit in the said interlocutory application is

misinterpreted by the learned Counsel for the petitioners

and these petitioners have made a specific plea in

paragraph No.9 of the affidavit that on 14.09.2017,

the respondents attempted to interfere with the peaceful

possession of the suit property and also attempted to

trespass into the property. He has also relied on Order 26

Rule 9 of CPC. Therefore, the trial Court has rightly

allowed the application.

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

7.The petitioner raised a ground that in the suit for

bare injunction appointment of advocate commissioner is not

necessary. However, it seen that the a specific plea in

paragraph No.9 of the affidavit has been raised that on

14.09.2017, the respondents attempted to interfere with the

peaceful possession of the suit property and also attempted

to trespass into the property. Further, it is relevant to

extract Order 26 Rule 9 of CPC as hereunder:

                                         “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 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.”

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1358 of 2017

8.The above provision permits a commission to make

local investigation in any suit in which the Court deems a

local investigation to be requisite. The trial Court by

taking to consideration of the above provision, appointed

an Advocate Commissioner for a local investigation for the

purpose of elucidating the matter in dispute, in view of

the specific plea raised by the plaintiffs.

9.For the reasons stated above, this Court is not

inclined to interfere with the orders of the trial Court.

Accordingly this civil revision petition is dismissed.

The trial Court is directed to dispose of the suit within a