Madras High Court
Shanthi vs Chellaiah on 21 April, 2023
2023/MHC/2038
C.R.P(MD)No.2575 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 21.04.2023
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.R.P(MD)No.2575 of 2014
and
M.P(MD)No.2 of 2014
Packiam @ Subramania Chettiar (Died)
1.Shanthi
2.Mathi
3.Ramalingam ... Petitioners
Vs.
Chellaiah,
Represented by his Power Agent,
Paulsamy @ Madasamy Thevar. ... Respondent
PRAYER : Civil Revision Petition is filed under Article 227 of the
Constitution of India, to call for the records relating to the petition and order
dated 07.02.2014 passed in I.A.No.169 of 2012 in A.S.No.31 of 2012 on the
file of the Sub-Court, Kovilpatti and set aside the same.
For Petitioner : Mr.V.Sasikumar
For Respondent : No appearance
1/17
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C.R.P(MD)No.2575 of 2014
ORDER
This Civil Revision Petition came to be filed assailing the order
passed by the learned Sub-Judge, Kovilpatti in I.A.No.169 of 2012 in
A.S.No.31 of 2012 on 07.02.2014. The Appeal Suit bearing A.S.No.31 of
2012 on the file of the learned Sub-Judge, Kovilpatti was preferred as
against O.S.No.49 of 2004 on the file of the District Munsif Court,
Vilathikulam. O.S.No.49 of 2004 was a suit for declaration and permanent
injunction. The said suit was dismissed on merits. As against the same, the
plaintiff had filed A.S.No.31 of 2012 before the Sub-Judge, Kovilpatti.
Along with the same, the Appellant / Plaintiff had filed I.A.No.169 of 2012
under Order XXVI, Rule 9 of the Code of Civil Procedure, 1908, seeking to
appoint an Advocate Commissioner to survey the plaint schedule property
with the aid of a surveyor on the basis of revenue documents with respect to
the plaint schedule property.
2. A counter was filed by the fourth respondent, who was the fourth
defendant in the original suit. The learned first Appellate Court allowed the
said petition on 07.02.2014. As against the same this Civil Revision Petition
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C.R.P(MD)No.2575 of 2014
is filed. For the sake of convenience, the parties herein are arrayed as in the
I.A.No.169 of 2012.
3. This case was taken up for hearing on 07.03.2023, on which date
the learned Counsel for the revision petitioner submitted his arguments.
Thereafter, the case was posted for respondent side arguments on
10.03.2023 and 30.03.2023, both dates on which, there was no
representation for the respondent. Recording the same, the revision
petitioner was allowed to submit his arguments further and the case was
posted under the caption 'For Orders' on 21.04.2023.
4. Heard the learned Counsel for the revision petitioner anxiously and
perused the materials available on record. The learned Counsel for the
revision petitioner took me through the various grounds of the Civil
Revision Petition, the contents of the documents and the various orders
passed by the Appellate Court as well as the Trial Court, in A.S.No.31 of
2012 and O.S.No.49 of 2004 respectively.
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C.R.P(MD)No.2575 of 2014
5. I.A.No.169 of 2012 was filed by the Petitioner / Appellant /
Plaintiff seeking to appoint an Advocate Commissioner in the first Appeal
suit. The gist of the Petitioner / Appellant / Plaintiff’s case is precisely as
follows:
“The Petitioner / Appellant acquired title over the plaint schedule
property consisting an area of 3 Acres and 9 Cents comprised in Survey No.
215/3 of M.Kumarachakkanapuram Village, corresponding to Zameen old
Adangal 26-A, by the strength of Sale Deed dated 25.03.1996 executed in
his favour together by Kanagasabapathi and Guruswamy. The necessity for
the appointment of Advocate Commissioner, arose when D.W.1 / 4th
respondent, namely, Ramalingam in his evidence disagreed with the four
boundaries of the plaint schedule property in his evidence before the Trial
Court. Simultaneously denying the Petitioner / Appellant’s claim that the
said property is in the possession and enjoyment of the Petitioner /
Appellant / Plaintiff, the 4th respondent also in his evidence stated that the
boundaries with respect to the plaint schedule property in the title
documents as well as the parent documents of the Petitioner / Appellant and
the survey numbers do not tally with each other. At the same time, the
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C.R.P(MD)No.2575 of 2014
Zameen Old survey number of the petitioner and that of the respondent are
also different. According to the Petitioner / Appellant, there was no change
in the nature of the plaint schedule property. However, the change of
boundaries with respect to the plaint schedule property is nothing but which
was due to the change in hands of ownership with respect to the properties
abutting the four boundaries from time to time. These facts could be
ascertained if the plaint schedule property is surveyed on the basis of
revenue records by an Advocate Commissioner with the assistance of a
surveyor.”
6. Per contra all the contentions of the Petitioner / Appellant / Plaintiff
were denied by the 4th respondent / 4th respondent / 4th defendant in his
counter statement to the said I.A.No.169 of 2012. It is the case of the 4th
respondent / 4th respondent / 4th defendant that the power of attorney of the
plaintiff is not entitled to file such an application, since he may not know
the facts and circumstances of the case fully.
7. The Trial Court has diligently and cogently conducted the trial of
the original suit by permitting the Power of Attorney holder of the plaintiff
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C.R.P(MD)No.2575 of 2014
to examine himself as P.W.1, marking Exhibits A1 to A15 through him.
Similarly, on the side of the defendants, three witnesses were examined as
D.Ws, marking Exhibits B1 to B18 through them. Further it is stated in the
counter that the Petitioner / Appellant / Plaintiff himself has accepted all the
Exhibits marked on the side of the defendants as admissible at the time of
trial, without any objection. In fact, all the 18 Exhibits marked on the side of
the defendants were submitted before the Trial Court only by the 4th
respondent / 4th respondent / 4th defendant. Likewise, Exhibits A11 and A12
are the documents created after the suit. It is completely incorrect as to the
Petitioner / Appellant’s claim that he was entitled to the plaint schedule
property by the strength of a sale deed in favour of Thayamma.
8. It is not true that the plaint schedule property is in the enjoyment
and possession of the Petitioner / Appellant. It is not justifiable on the part
of the Petitioner / Appellant to have submitted that the change in survey
number and four boundaries of the plaint schedule property is nothing but,
due to the change in ownership of the various abutting properties over the
passage of time. It is unjust on the part of the Petitioner / Appellant to have
submitted that the plaint schedule property could be ascertained, if
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C.R.P(MD)No.2575 of 2014
measured and surveyed on the basis of revenue records. There is no
relevance between Exhibit A2 and Exhibit A1. The properties mentioned in
both of those documents are not connected with each other. Without
specifically mentioning the documents to be relied for measuring the plaint
schedule property, the Petitioner / Appellant / Plaintiff is not justified in
filing an application under Order XXVI, Rule 9 of the Code of Civil
Procedure, 1908. This application has been filed only with a mala fide
intention to defeat the ends of justice and to delay the proper adjudication of
the appeal suit and the same is filed with the sole intention of preventing the
respondent / respondent / defendants from enjoying the fruits of the
judgment and decree passed by the learned Trial Court in the original suit.
9. However, the learned first Appellate Court allowed the said
application stating that, despite the objections of the 4th respondent / 4th
respondent / 4th defendant, it is reasonable to appoint an Advocate
Commissioner to inspect the plaint schedule property with the assistance of
a surveyor. Now the sole question to be decided is as to the maintainability
of the order passed by the first Appellate Court in appointing an Advocate
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Commissioner to measure the plaint schedule property with the assistance of
a surveyor in the Appeal suit.
10. The original suit was one for declaration and permanent
injunction with respect to the Petitioner / Appellant / Plaintiff's title and
enjoyment over the plaint schedule property. For the proper adjudication of
this revision petition, it is pertinent to consider the judgment of the Trial
Court in the original suit. The learned Trial Court in its judgment has
observed that the perusal of the evidence and the documents marked by both
parties would reveal that the Petitioner / Appellant has purchased the plaint
schedule property consisting an area of 3 Acres and 9 Cents land comprised
in Survey No.215/3 from one Kanagasabapathi and Guruswamy and the said
sale deed was marked as Exhibit A1. However, the parent document through
which Gurusamy and Kanagasabapathi purchased the said property which is
marked in the said case as Exhibit A2 would reveal that the property
mentioned therein was comprised in Survey No.216.
11. The submissions of the Petitioner / Appellant / Plaintiff that the
survey number correlating to the old Zameen Adangal 26-A is Survey No.
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215 and the same is not Survey No.216, but inadvertently the survey
number was wrongly stated in Exhibit A2 and this submission was
vehemently opposed by the respondents / respondents / defendants. The
Trial Court further discussed that the various revenue records especially
Exhibit B16 revealed that both the first defendant and his sister Swarna
Gandhi are the joint patta holders of the property comprised in Survey No.
215/3 (plaint schedule property). Hence, the learned Trial Court held that
the original suit was bad for non-joinder of necessary parties, that is, for
non-joinder of Swarna Gandhi in whose name the patta with respect to the
plaint schedule property stands along with the first defendant. Dismissing
the suit for declaration and permanent injunction filed by the Petitioner /
Appellant / Plaintiff, the learned Trial Court has specifically mentioned that
the Power of Attorney holder of the plaintiff, who deposed evidence as the
only plaintiff's side witness, in his evidence has accepted that the plaintiff
has not filed appropriate documents necessary to prove his case. At the same
time, the said witness fully agreed with the submissions and the various
documents submitted on the side of the defendants. Clearly mentioning that
the plaintiff has failed to prove his case, the learned Trial Court dismissed
the original suit.
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12. When the learned Trial Court has categorically decided the
original suit as against the Petitioner / Appellant / Plaintiff on the basis of
the various title / parent documents filed by both the parties along with all
the relevant revenue records, I am of the view that, the first Appellate Court
ought not to have appointed an Advocate Commissioner in the Appeal Suit
to measure the plaint schedule property with the assistance of a surveyor.
Because the reason stated by the Petitioner / Appellant seeking the
appointment of an Advocate Commissioner was mainly the evidence
deposed by the 4th respondent / 4th respondent before the Trial Court with
respect to the indiscrepancies in the survey number as well as the four
boundaries of the plaint schedule property as described in Exhibits A1 and
A2. Had that been the point for the Petitioner / Appellant to seek
appointment of an Advocate Commissioner, the Petitioner / Appellant /
Plaintiff ought to have made an application for the same, immediately after
the evidence of D.W.1 before the Trial Court. Having not done that, now the
Petitioner / Appellant / Plaintiff is not entitled to file an application under
Order XXVI, Rule 9 of the Code of Civil Procedure in the Appeal Suit.
Appointment of an Advocate Commissioner in the appellate stage by the
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Appellate Court and receipt of Commissioner's report as an additional
evidence cannot be done mechanically by the Appellate Court without
proper reasons. In this case, while allowing the interim application filed by
the Petitioner / Appellant under Order XXVI, Rule 9 of the Code of Civil
Procedure, the learned Appellate Court without elaborating the reasons for
allowing the said application did the said exercise mechanically. Having
purchased an area of 3 Acres and 9 Cents land comprised in Survey No.216
from one Thayamma, the vendors of the Petitioner / Appellant / Plaintiff
have no right to execute the sale deed in favour of the Petitioner / Appellant
with respect to an area of 3 Acres and 9 Cents land comprised in Survey No.
215 in favour of the plaintiff. Moreover, the indiscrepancies with respect to
the survey number and the four boundaries between the title document and
parent document (Exhibits A1 and A2) relied by the Petitioner / Appellant /
Plaintiff to prove his title and possession over the plaint schedule property
could be substantiated clearly from the title documents and revenue records
produced at the time of trial by both the parties before the Trial Court even
without any Commissioner's report.
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C.R.P(MD)No.2575 of 2014
13. The Trial Court was able to conclude without any iota of doubt as
to the title and possession of the respective parties in the original suit. So
after the judgment and decree in the original suit, the Petitioner / Appellant /
Plaintiff cannot fill up the lacunas in his case in the Appellate stage by
seeking appointment of an Advocate Commissioner. The judgment of this
Court in the case of R.Nandakumar Vs. The Dindigul Co-operative
Housing Building Society Ltd. reported in [MANU/TN/2167/2008] dated
12.03.2008 in paragraph Nos.7 and 9 has held as follows:
“7. Appointment of Advocate-Commissioner in the
Appellate stage in the Appellate court and receiving the
Commissioner's report as additional evidence is not automatic.
Under Or.41, Rule 27 CPC production of additional evidence
whether oral or documentary is permitted only under three
circumstances (i) the trial court had refused to admit the
evidence though it ought to have been admitted; (ii) the
evidence was not available to the party despite exercise of due
diligence and (iii) the appellate court required the additional
evidence so as to enable it to pronounce better judgment or for
any other substantial cause of like nature. The basic principle
requisite for admission of additional evidence is the existence of
one or other of the above said conditions.
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9. The discretion for allowing additional evidence at
Appellate stage cannot be exercised to patch up the weak points
of his case and fill up lacuna in the Appellate court by
production of additional evidence.”
14. This Court in the said decision has categorically stated that the
appointment of an Advocate Commissioner in the appellate stage by the
Appellate Court and receiving the Commissioner's Report as additional
evidence is not automatic. Moreover, none of the circumstances described in
the above order exist in the facts and circumstances of the instant case. The
provisions relating to the appointment of Commissioner are Section 75 and
Order XXVI, Rules 1 to 22 of the Code of Civil Procedure, 1908. Of which,
Order XXVI, Rule 9 specifically deals with commissions to make local
investigation. The scope of appointment of an Advocate Commissioner is
neither to assist any party to collect evidence to prove the case of parties nor
to make any enquiry with regard to the factum of possession of the suit
property. Before allowing an interim application under Order XXVI, Rule 9
of the Code of Civil Procedure, 1908, the Court concerned should approach
the said application with a holistic mind. Only after considering, the total
pleadings of both parties, relief claimed in the suit and the necessity to
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appoint an Advocate Commissioner to decide the real controversy between
the various parties to the suit, the learned first Appellate Court ought to
have worked out the relief to be granted in the impugned order.
15. Here in this case, the Appellate Court without going into the
merits of the case decided by the learned Trial Court, the various documents
marked by both the parties, the relevant evidence deposed on the side of the
plaintiff and the defendants proceeded to allow the application filed under
Order XXVI, Rule 9 of the Code of Civil Procedure without recording any
reason for the same. Such an unmindful exercise of judicial power by the
first Appellate Court is not sustainable. The true test therefore, is whether
the Appellate Court could pronounce judgment with the materials before it,
without appointment of an Advocate Commissioner. No doubt, in this case,
the application was filed by the Petitioner / Appellant / Plaintiff to fill up the
lacunas in his case which cropped up after the pronouncement of the
judgment and decree by the learned Trial Court and such an application
came to be allowed by the Appellate Court in the Appellate stage without
putting forth appropriate reasons for allowing the same. Therefore, it is not
possible to sustain the order, allowing the petition seeking the appointment
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of an Advocate Commissioner before the Appellate Court in the appellate
stage. Though it is well settled that the report of the Court Commissioner
and the evidence collected by him becomes part of the record as provided
under Order XXVI, Rule 10 (2) of the Code of Civil Procedure, 1908, in the
facts and circumstances of this case, if the order passed by the learned
Appellate Court is allowed, both the parties would be entitled to file their
objections to the Commissioner's Report and examine / cross-examine him.
Further, the respondents / respondents / defendants would also be entitled to
impeach the documents which are permitted by the Appellate Court to aid
the Advocate Commissioner in surveying the plaint schedule property,
complicating the proper adjudication of the Appeal, rather throwing light to
the ends of justice. To be specific, when the Petitioner / Appellant / Plaintiff
himself is not certain as to which document / record should be in aid to the
Advocate Commissioner to conduct the survey of the plaint schedule
property and when he had not explained the reasons for not seeking
appointment of an Advocate Commissioner before the Trial Court, the
appointment of the Advocate Commissioner by the Appellate Court in the
appellate stage is unwarranted.
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16. To conclude, I am of the considered view that the order passed by
the learned Sub-Judge, Kovilpatti in I.A.No.169 of 2012 in A.S.No.31 of
2012 is not sustainable and hence the same is dismissed. The First Appellate
Court is directed to conclude the appeal as expeditiously as possible within
a period of two (2) months from the date of receipt of a copy of this order.
In furtherance to the same, this Civil Revision Petition stands allowed.
Consequently, connected Miscellaneous Petition stands closed. There shall
be no order as to costs.
21.04.2023
NCC : Yes
Index : Yes
Internet : Yes
BTR
To
1.The Sub-Court,
Kovilpatti.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P(MD)No.2575 of 2014
L.VICTORIA GOWRI, J.
BTR
Order made in
C.R.P(MD)No.2575 of 2014
21.04.2023
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