Madras High Court
O.Paraman vs C.Ochan on 20 June, 2022
CRP(PD)(MD)No.1179 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(PD)(MD)No.1179 of 2022 and
CMP(MD) No.4840 of 2022
1.O.Paraman
2.C.Katturaja
3.M.Raman ... Petitioners
Vs
Chinnan (Died)
1.C.Ochan
2.Panchayat President
Sitharevu Village Panchayat
Sitharevu Village,
Athur Taluk,
Dindigul District.
3.C.Markandan
4.C.Muthulakshmi
5.O.Amirtham
6.M.Selvi
7.P.Kannan
8.C.Parvathi ... Respondents
Prayer: Petition filed under Article 227 of the Constitution of India, to set
aside the fair and decreetal order dated 07.03.2022 made in I.A.No.1 of
1/5
https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.1179 of 2022
2020 in A.S.No.23 of 2017, on the file of the Principal Subordinate Judge,
Dindigul.
For Petitioner : Mr.N.Balasubramanian
ORDER
This Civil Revision Petition is filed as against the fair and
decreetal order of the learned Principal Subordinate Judge, Dindigul in
I.A.No.1 of 2020 in A.S.No.23 of 2017.
2.The petitioners are the plaintiffs, who filed a suit for
declaration and mandatory injunction in O.S.No.188 of 2009 against the
respondents herein, before the District Munsif Court, Nilakottai. The suit
was dismissed by the trial Court and as against the judgment and decree of
the trial Court, the petitioner preferred an Appeal Suit in A.S.No.23 of 2017,
before the Principal Subordinate Judge, Dindigul. In the Appeal Suit, the
petitioners/plaintiffs have taken out an application in I.A.No.1 of 2020, for
appointment of Advocate Commissioner, under Order XXVI Rule 9 of CPC
and the same was dismissed by the Appellate Court, by referring the
judgment of the Honourable Apex Court in AIR 1969 Madras 144, that the
appointment of Commissioner in the Appeal is rarity and is seldom resorted
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CRP(PD)(MD)No.1179 of 2022
to. The Appellate Court further held that the appointment is not authorised
by Order 41 Rule 27 of CPC and this is the case of Mandatory injunction,
where this application is filed to gather the evidence in the appellate stage.
3.The learned counsel appearing for the petitioner submits that
the Appellate Court rejected the application merely on the ground that the
application is taken out in the appellate stage. According to the learned
counsel for the petitioner there is no bar for appointment of Advocate
Commissioner in the suit for injunction and as per Section 75 and Order 24
Rule 9 of CPC, the appointment of Advocate Commissioner at the appellate
stage is permissible under law. For elucidating any matter in dispute, the
appointment of Advocate Commissioner is permissible at any stage.
4.This Court considered the arguments and the grounds raised
by the petitioners counsel on behalf of the petitioners. Since no adverse
order is going to be passed as against the respondents, notice to them is
dispensed with.
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CRP(PD)(MD)No.1179 of 2022
5.The case of the petitioners/plaintiffs is that in view of the
partition deed as well as the sale deed, the existence of pathway in the suit
property is an established one. However, the respondents have denied the
existence of the pathway contrary to their own documents. When the case of
the plaintiffs is based on certain documents, they can very well establish
their case through those documents, which are available with them. The
appointment of Advocate Commissioner to gather evidence or to assist the
parties to collect evidence is not permissible.
6.In view of the above, this Civil Revision Petition is dismissed
at the admission stage itself. No costs. Consequently, connected
Miscellaneous Petition is closed.
20.06.2022
Index : Yes / No.
Internet : Yes / No.
vrn
To
The Principal Subordinate Judge, Dindigul.
https://www.mhc.tn.gov.in/judis
CRP(PD)(MD)No.1179 of 2022
B.PUGALENDHI, J.
vrn
Order made in
CRP(PD)(MD)No.1179 of 2022
20.06.2022
https://www.mhc.tn.gov.in/judis
