Madras High Court
R.M.Ponnusamy vs G.Thangaraj on 11 January, 2023
CRP(MD)No.1316 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.1316 of 2022
and
CMP(MD)No.5448 of 2022
R.M.Ponnusamy : Petitioner
Vs.
G.Thangaraj : Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India to call for the records relating to the docket order passed by the learned II
Additional District Munsif, Tiruchirappalli, in O.S.No.1498 of 2012, dated
03.03.2022 and set aside the same.
For Petitioner : Mr.B.Saravanan
For Respondent : Mr.K.S.Kathiravan
*****
ORDER
The petitioner is the defendant in O.S.No.1498 of 2012, which is pending on
the file of the II Additional District Munsif Court, Tiruchirappalli and he filed this
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CRP(MD)No.1316 of 2022
revision petition as against the docket order dated 03.03.2022 passed in O.S.No.
1498 of 2012, in and by which, the trial Court has suo-motu reopened the petition
and appointed a new Advocate Commissioner to inspect the suit property along
with a qualified Surveyor to measure the suit property specifically from Trichy to
Pudukottai road.
2.Learned Counsel for the petitioner submitted that the suit was filed in the
year 2012 for the relief of declaration, injunction and recovery of possession. The
trial was concluded, arguments were finished on either side and the suit was
posted for judgment. On 17.12.2021, the trial Court suo-motu reopened the case
for certain clarifications and on 21.12.2021, both sides have filed their written
arguments. Thereafter, the trial Court posted the case for judgment on 23.12.2021.
While so, on 03.03.2022, the trial Court reopened the case and suo-motu ordered
for appointment of a new Advocate Commissioner without scrapping the earlier
report filed by the earlier Advocate Commissioner, which would cause confusion
in the entire suit proceedings. He further submitted that the trial Court has simply
reissued the warrant without any reasons and without scrapping the earlier report.
Therefore, he prayed for interference. He has also relied upon the following
decisions of this Court in support of his contention:-
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CRP(MD)No.1316 of 2022
i) Visvanadham v. Mangamma and Others, [AIR 1930 Mad 236];
ii) Padmanabhan v. Krishnamurthy, [2005 (3) CTC 619];
iii) Kitnammal v. Nallaselvan and Others, [2005 (1) CTC 356];
iv) Kamala Devi v. T.P.Manoharan, [CRP.No.2134 of 2008, dated
14.10.2008];
v) A.Elumalai v. G.Vijayalakshmi and Others, [CRP.No.2010 of 2016,
dated 21.11.2016];
vi) Chinnasami v. Amudha and Others, [CRP.No.1045 of 2011, dated
17.08.2017];
vii) Raju v. Easwaran and Others, [CRP.No.1938 of 2013, dated
31.01.2017]; and
viii) Govindasamy v. Raman, [CRP.No.3115 of 2018, dated 29.07.2021].
3.Learned Counsel for the respondent submitted that he has not filed any
application for re-issuance of Commissioner warrant and it is the Court, for its
clarification, has issued the warrant. Therefore, there is no reason to interfere with
the order passed by the trial Court and he prayed for dismissal.
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CRP(MD)No.1316 of 2022
4.This Court paid it's anxious consideration to the rival submissions and
also to the materials placed on record.
5.The suit was filed in the year 2012 and an application for appointment of
Advocate Commissioner under Order 26 Rule 9 CPC was filed by the respondent /
plaintiff in the year 2012. The said application was allowed by the trial Court and
an Advocate Commissioner was appointed. The Commissioner inspected the
property and filed his report on 13.12.2018. After the trial, the arguments were
concluded on 04.12.2021 and the suit was posted for judgment on 17.12.2021.
Thereafter, it was reopened for clarification and subsequently, by order dated
03.03.2022, the trial Court suo-motu appointed a new Advocate Commissioner to
inspect the property from a particular point.
6.Perusal of the order dated 03.03.2022 discloses that the learned Judge has
noted down certain lacuna in the earlier Commissioner's report that the earlier
Commissioner has failed to mention the extent with regard to the plaintiff's
property and the defendant's property as per their sale deed. Therefore, the learned
Judge reissued the warrant and appointed a new Advocate Commissioner to
inspect the suit property specifically from Trichy to Pudukottai road. It appears
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CRP(MD)No.1316 of 2022
that the subsequent Commissioner has also inspected the property and filed his
report.
7.Appointment of Advocate Commissioner is provided under Order 26 Rule
9 CPC and the same is usefully extracted as under:-
“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.”
8.The procedure of Commissioner is contemplated under Order 26 Rule 10
CPC that the Commissioner, after inspection, shall note down the evidence taken
by him and shall return such evidence together with his report in writing to the
Court. The Commissioner is liable to be examined and the report and depositions
of the Commissioner has to be treated as evidence in the suit.
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CRP(MD)No.1316 of 2022
9.If the Court is not satisfied with the proceedings of the Commissioner, it
may direct such further enquiry to be made as it thinks fit, as per Order 26 Rule
10(3) CPC. It is not explicitly mentioned in Order 26 Rule 10(3) CPC that the
earlier Commissioner's report has to be scrapped and only then, a new
Commissioner has to be appointed. However, in order to avoid certain confusions
with regard to two reports, the Courts are adopting the practice of scrapping the
earlier Commissioner's report and ordering for a new Commissioner, if any further
report is required. In the decisions relied upon by the petitioner, this Court has
held that while ordering for a new Advocate Commissioner, the earlier report has
to be scrapped. However, Order 26 Rule 10(3) CPC does not prescribe the same.
10.The grievance of the petitioner is that after the arguments, the trial Court
reopened the case and suo-motu ordered for a new Advocate Commissioner
without scrapping the earlier report. Order 26 Rule 10(3) CPC enables the Court
for further enquiry as the Court thinks fit, if the Court is dissatisfied with the
proceedings of the Commissioner. In this case, after the arguments and before
pronouncing the judgment, the trial Court found certain lacuna in the earlier
Commissioner's report that the earlier Commissioner has miserably failed to
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CRP(MD)No.1316 of 2022
mention the extent with regard to the plaintiff's property and the defendant's
property as per the sale deed in his report. Therefore, in order to ascertain the
correct facts and to elucidate the facts in issue, the Court reissued the warrant by
appointing a new Commissioner with a specific direction to measure the suit
property with the assistance of a qualified Surveyor from Trichy to Pudukottai
road. This cannot be found fault with, in view of the provisions under Order 26
Rule 10(3) CPC. What is required is that the Court has to assign the reasons for
ordering for appointment of a new Advocate Commissioner and the Code does not
prescribe the manner in which the new Advocate Commissioner has to be
appointed.
11.In any suit, if the Court deems a local investigation is required for the
purpose of elucidating any matter in dispute, it is the discretion of the Court to
appoint the Advocate Commissioner, under Order 26 Rule 9 CPC. However,
certain restrictions have been made by the Courts that the Advocate Commissioner
cannot be appointed for collection of evidence, et cetra. It is the trial Court, which
has to decide whether the local investigation is required for the adjudication of the
dispute pending before it. When Order 26 Rule 10(3) CPC provides for further
enquiry by the Court, if the Court is not satisfied with the proceedings of the
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CRP(MD)No.1316 of 2022
Commissioner, it cannot be made as a hard and fast rule that in all the cases, the
earlier Commissioner's report has to be scrapped before ordering for another
Advocate Commissioner. It has to be decided on the facts of the individual cases.
Here, the trial Court has held that the earlier Commissioner failed to mention
certain details, for which, the new Commissioner is appointed. The trial Court did
not note any adverse remarks as against the earlier report, which may warrant its
scrapping.
12.The Hon'ble Supreme Court, in its latest decision in M.P.Rajya Tilhan
Utpadak Shaker Sangh Maryadit, Pachama, District Sehore and Others v. Modi
Transport Service, [2022 LiveLaw (SC) 471], has held that the Commissioner's
report is only an opinion or noting with the details / statement to the Court the
actual state of affairs. Such a report does not automatically form part of the Court's
opinion, as the Court has the power to confirm, vary or even set aside the report or
in a given case, issue a new Commission. The relevant portion from the said
decision is extracted as under:-
“33. Order XXVI Rule 9 of the Code gives wide powers to the
court to appoint a commissioner to make local investigations which may
be requisite or proper for elucidating any matter in dispute,
ascertaining the market value of any property, account of mesne profit
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CRP(MD)No.1316 of 2022
or damages or annual net profits. Under Order XXVI Rule 11, the court
has the power to issue a commission in a suit, in which examination of
adjustment of accounts is necessary, to a person as it thinks fit directing
him to make such examination or adjustment. When a court issues such
a commission to such a person, it can direct the commissioner to make
such an investigation, examination and adjustment and submit a report
thereon to the court. The commissioner so appointed does not strictly
perform a ‘judicial act which is binding’ but only a ‘ministerial act’.
Nothing is left to the commissioner’s discretion, and there is no
occasion to use his judgment or permitting the commissioner to
adjudicate and decide the issue involved; the commissioner’s report is
only an opinion or noting, as the case may be with the details and/or
statement to the court the actual state of affairs. Such a report does not
automatically form part of the court’s opinion, as the court has the
power to confirm, vary or set aside the report or in a given case issue a
new commission. Hence, there is neither abdication nor delegation of
the powers of functions of the court to decide the issue. Sometimes, on
examination of the commissioner, the report forms part of the record
and evidence. The parties can contest an expert opinion/commissioner’s
report, and the court, after hearing objections, can determine whether
or not it should rely upon such an expert opinion/commissioner’s report.
Even if the court relies upon the same, it will merely aid and not bind
the court. In strict sense, the commissioners’ reports are ‘non-
adjudicatory in nature’, and the courts adjudicate upon the rights of the
parties.”
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CRP(MD)No.1316 of 2022
13.In this case, though the trial Court has pointed out that the earlier
Advocate Commissioner has not noted down the measurements of the plaintiff's
property and the defendant's property, neither the plaintiff nor the defendant has
raised any objections to the earlier Commissioner's report. The new Advocate
Commissioner was appointed only for elucidating the matter in dispute as required
by the Court for the just adjudication of the suit and the same does not require the
scrapping of the earlier report, unless or otherwise the Court so require.
For the foregoing reasonings and discussions, this Court is not inclined to
interfere with the order of the trial Court and this revision petition stands
accordingly, dismissed. It is made clear that it is open to the petitioner to cross
examine the Advocate Commissioner, since the Commissioner's report is also
considered to be an evidence in the suit. There shall be no order as to costs.
Consequently, connected miscellaneous petition stands closed.
Index : Yes / No 11.01.2023
gk
To
The II Additional District Munsif,
Tiruchirappalli.
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CRP(MD)No.1316 of 2022
B.PUGALENDHI, J.
gk
CRP(MD)No.1316 of 2022
11.01.2023
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