Madras High Court
P.Duraisamy vs M.M.Ramasamy on 21 November, 2023
Author: J. Sathya Narayana Prasad
Bench: J. Sathya Narayana Prasad
1 C.R.P.No.4208 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.11.2023
CORAM:
THE HON'BLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
C.R.P.(PD).No.4208 of 2019
and CMP.No.27445 of 2019
P.Duraisamy ... Petitioner
Vs.
1. M.M.Ramasamy
2. R. Jayalakshmi ... Respondents
This Civil Revision Petition is filed under Article 227 of the
Constitution of India praying to set aside the fair and decreetal order
dated 27.02.2019 made in I.A.No.330 of 2018 in O.S.No.1572 of 2013
on the file of the learned V Additional District Munsif Court, Coimbatore
by allowing this Civil Revision Petition.
For Petitioner : Mr.V.Anandhamoorthy
For Respondents : Mr.N.Krishnakumar
for M/s.Sarvabhauman
Associates
https://www.mhc.tn.gov.in/judis
2 C.R.P.No.4208 of 2019
ORDER
The present civil revision petition has been filed to set aside the
fair and decreetal order dated 27.02.2019 made in I.A.No.330 of 2018 in
O.S.No.1572 of 2013 on the file of the learned V Additional District
Munsif Court, Coimbatore.
2. The learned counsel appearing for the petitioner submitted that
the revision petitioner is the plaintiff in suit O.S.No.1572 of 2013, which
was filed for declaration and permanent injunction. The revision
petitioner has already filed a suit in O.S.No.123 of 2005 for declaration
and permanent injunction for the same cart track before the District
Munsif Court, Avinashi and the suit was decreed on 13.04.2006.
Aggrieved by the decreetal order, the respondents/defendants have filed
A.S.No.43 of 2006 on the file of the Sub Court, Tirupur and the same
was dismissed on 27.04.2007 confirming the judgment and decree passed
in O.S.No.123 of 2005. Thereafter, the plaintiff/revision petitioner filed
an application I.A.No.1566 of 2013 for appointment of an Advocate
Commissioner and the trial Court allowed the application by appointing
an Advocate Commissioner. The learned Advocate Commissioner has
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filed his report and no objection were filed by the
respondents/defendants. Since in the earlier commissioner's report survey
numbers were not mentioned the respondents/defendants have filed
I.A.No.330 of 2018 to re-issue warrant to earlier Advocate
Commissioner and the application was allowed by appointing a fresh
Advocate Commissioner. In I.A.No.1566 of 2013 the Advocate
Commissioner was appointed by the trial Court and he visited the
property without giving notice to the respondents/defendants and he has
not mentioned the survey field numbers in his report and the assistance
of the Revenue Officials were not taken while inspecting the property.
Therefore, I.A.No.330 of 2018 was filed to re-issue the warrant to note
down the cart track and to submit his report. Accordingly, vide order
dated 27.02.2019, fresh Advocate Commissioner was appointed by the
trial Court.
3. The Advocate Commissioner's report was filed in the year 2013.
After the plaintiff's side evidence was over and when the case was posted
for defendants' side evidence, the respondents/defendants have filed the
Application I.A.No.330 of 2018. Even though, Advocate Commissioner's
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report was filed in the year 2013 no objection was filed by way of an
application to reject the commissioner's report by the
respondents/defendants. After a delay of five years that too after the
evidence of plaintiff was over and when the case was posted for
defendants side evidence, the respondents/defendants have come forward
with the present application for appointment of a new Advocate
Commissioner.
4. He further submitted that though, the respondents/defendants
have sought for re-issue of warrant to the same Advocate Commissioner,
the trial Court appointed a new Advocate Commissioner by order dated
27.02.2019 and directed him to survey the property which has already
been surveyed by the previous Advocate Commissioner. The previous
Advocate Commissioner's report was filed in the year 2013, but no
objection was filed by way of application to reject/object the
commissioner’s report and application in I.A.No.330 of 2008 was filed
after a delay of 5 years that too after the evidence of plaintiff's side
is over and when the case is posted for defendant side
evidence, the respondents/defendants have come forward
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with the present application for appointment of the new Advocate
Commissioner. The learned counsel appearing for the petitioner drew the
attention of this Court to the order passed by the V Additional District
Munsif Court, Coimbatore in I.A.No.330 of 2018 dated 27.02.2019 and
the same is extracted hereunder:-
“ The respondent in his counter stated that already filed a
Commission Application in I.A.No.1566 of 2013 in O.S.No.1572 of
2013 to appoint an advocate commissioner and filed commissioner
report. On perusal of records the above I.A.No.1566 of 2013 in
O.S.No.1572 of 2013 commissioner report was exparte commission
and without giving notice to the petitioner. In this situation this Court
is of opinion that the appointment of Advocate Commissioner as
mentioned in the petition is necessary to the disposal of this case and
find out the which cart-track is located to reach his land in
S.F.No.483 and 486 of the parties in respect of suit property. The
aforesaid reason this Court of opinion that the advocate
commissioner report as mentioned in the petition is necessary to this
case and also this Court find that the appointment of advocate
commissioner would facilitate to find out the suit cart-track is located
to reach his land in S.F.No.483 and 486 it would also facilitate this
Court to know the correct physical features of the property. The
petitioner relied upon ruling The Hon'ble High Court of Madras 1)
213 (2) MWN (Civil) 619, 2) 2015 (3) CTC 689 are supported the
petitioner case. Hence I am inclined to allow this petition”.
5. In the earlier application in I.A.No.1566 of 2013
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Mr.S.Vivekanandan has been appointed as Advocate Commissioner and
in the present application another Advocate Commissioner by name
Mr.K.Rajesh Kumar has been appointed by the trial Court. The learned
counsel appearing for the revision petitioner further submitted that the
purpose of filing this application belatedly after a lapse of 5 years from
the date of earlier commissioner’s report in the year 2013 is only to
collect evidence since the respondents/defendants have already suffered
decree vide O.S.No.123 of 2003 by the District Munsif Court, Avinashi
on 13.04.2006.
6. In this context, the learned counsel appearing for the petitioner
relied upon the judgment passed by this Court in 2005 (1) CTC 356 in
the case of Kitnammal Vs Nallaselvan and others wherein it has been
held that:-
“10. As rightly argued for the plaintiffs, the very
appointment of the second advocate-commissioner without setting
aside the report and plan of the first advocate-commissioner itself
is not proper and therefore, the report and rough plan of the
second advocate-commissioner cannot form part of the records
unless the report and rough plan of the first advocate-
commissioner are eschewed”.
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He also relied upon in another judgment passed by this Court in
CRP (PD).No.1938 of 2013 reported in 2017 SCC Online Mad 6982 in
the case of Raju Vs Easwaran and others, this Court held as under:-
“16. Thus, once when an Advocate Commissioner has been
appointed and has submitted a report the Court cannot for the same
purpose appoint an Advocate Commissioner for the second time
without scrapping the report of the first Advocate Commissioner
and the Courts also should be cautious in ensuring that under the
grab of appointing a second Advocate Commissioner, the parties
cannot try to get over the difficulties or adverse findings of the
report that could have been filed by the first Advocate
Commissioner. If the same is allowed, it would be nothing but
permitting a party to abuse the process of law which at any cost
shall not be permitted by the Courts.
17. Looked from this angle, it is quite clear in the instant
case that the disputed suit cart track has been already inspected by
the first Advocate Commissioner, who has in turn filed a report
with findings adverse to the respondents herein and the said report
of the Advocate Commissioner still remains intact. This being the
position, the respondents, without getting the report of the first
Advocate Commissioner scrapped by leading in satisfactory and
proper evidence, cannot be permitted to sabotage the report of the
first Advocate Commissioner by seeking appointment of a new
Advocate Commissioner allegedly claiming it is for a different
purpose. At this juncture, it is also relevant to point out that if the
lower Court found that there were some deficiencies or certain facts
which have properly not been ascertained by the first Advocate
Commissioner in his report, it could have very well reissued the
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Warrant to him and directed him to inspect the property and file a
report. Admittedly, the same has also not been done. This Court,
recently, in Samitta Kounder Vs. Murugesan reported in 2016 (6)
CTC 66, while considering a similar issue has only directed the
Warrant to be raised to the very same Advocate Commissioner since
in that case, it was found that there were some deficiencies in the
first report that was filed. However, here, though it has been
vociferously contended by the learned counsel for the respondents
that the appointment of the second Advocate Commissioner is for a
different purpose, I am unable to accept the submission for a
simple reason that if the suit cart track was in fact obliterated, it
would have been quite evident in the report of the first Advocate
Commissioner itself. On the contrary, the first Advocate
Commissioner report only weakens the case of the respondents by
stating that there is no presence of a cart track. Hence, by adding
one phrase, “obliteration of the Cart track” in addition to “physical
features of the suit property”, the respondents cannot be permitted
to do something indirectly which they could not have done directly.
18. From the above discussion, this Court is of the
categorical view that the appointment of the second Advocate
Commissioner by the I Additional District Munsif, Bhavani in
I.A.No.131 of 2012 in O.S.No.71 of 2009 is not for a different
purpose but for the same purpose for which a Commissioner was
previously appointed in I.A.No.705 of 2010 in O.S.No.71 of 2009.
Thus, the order of the trial Court is liable to be interfered with and
accordingly, this Civil Revision Petition is hereby allowed and the
order passed by the I Additional District Munsif, Bhavani in
I.A.No.131 of 2012 in O.S.No.71 of 2009 dated 28.02.2013 ought to
be set aside.”
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7. Per contra, the learned counsel appearing for the respondents
submitted that without giving notice to the petitioner, the Advocate
Commissioner has inspected the suit property and filed the report. The
learned counsel further submitted that the respondents/defendants have
not filed any objection or application to reject/object the report filed by
the Advocate Commissioner and it is not in dispute and it is an admitted
fact. The delay of five years in filing the application and the reason
submitted by the learned counsel is that only after PW1 was examined
they came to know about the fact that the survey numbers were not
mentioned in the Advocate Commissioner's report which is not
sustainable for the reason commissioner's report was filed way back in
the year 2013 and the respondents/defendants have armful opportunity to
peruse the advocate commissioner's report which they failed to do so and
are now coming forward with the present application to appoint a new
Advocate Commissioner which is not maintainable as per law.
8. In support of his contention, the learned counsel relied upon the
judgment of this Court reported in 2008 (3) CTC 602 in the case of
A.Palaniappan Vs K.Nallasamy and others.
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“7. It is true that at an earlier point of time, an Advocate
Commissioner was appointed by the Trial Court at the instance
of the respondents. In pursuance of the warrant issued to the
Advocate Commissioner, he had inspected the property and
submitted the report. After a period of about two years, the
petitioner has come up with the present application to remit the
report to the Advocate Commissioner and to file a fresh report in
the light of the objections filed by the petitioner to the earlier
Commissioner's report. The learned Trial Judge observed that
the details which are sought to be collected by way of remitting
the report to the Advocate Commissioner could be elicited by
examining the Advocate Commissioner and such being the case,
the application to remit the warrant to the Advocate
Commissioner with a prayer to file a fresh report is clearly
unwarranted in the facts and circumstances of the case.
However, the fact remains that the petitioner has preferred
objection to the report of the Advocate Commissioner and it was
his case before the Trial Court that the plan drawn by the
Advocate Commissioner was not in accordance with the actual
measurement of the property and in fact, the inspection was
conducted in the absence of the petitioner. The prayer in the
application is only to remit the warrant to the very same
Advocate Commissioner for the purpose of filing a fresh report
after measuring the property with the help of a surveyor, but of
course, taking into consideration the objection filed by the
present petitioner. All the procedures are man made and the
ultimate goal is to do complete justice. The petitioner being the
plaintiff in the suit, the burden is on him to prove the plaint
averments and for the purpose of projecting his case, the
petitioner has sought the report of an Advocate Commissioner by
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remitting the warrant to the very same Commissioner and as
such I do not find any reason to deny the relief to the petitioner.
Therefore, I am inclined to allow this Civil Revision Petition by
setting aside the order dated 18.06.2007 in I.A.No.394 of 2007”.
He also relied upon in another judgment in the case of Marichamy
Vs Dhatchinamoorthy in C.R.P. (PD) (MD) No.1040 of 2015 dated
20.06.2018
“7. Of course, it is true that in the normal course without
scraping the earlier report for defects, it is not possible to
appoint another Commissioner for the same purpose. But here,
the earlier Commissioner's report need not be scrapped because
by re-issuing the warrant, the very same Commissioner is
directed to submit an Additional report. Thus both reports will
be on the file of the Court and by doing so, no prejudice would
be caused to the respondent herein also.”
9. Heard both sides and perused the materials available on record.
10. In the case on hand, the issue involved is, when the earlier
Advocate Commissioner has filed his report, whether for the same
purpose, new Advocate Commissioner can be appointed or not. The
earlier commissioner has filed the report in the year 2013 and the same
was not objected by the respondents/defendants and now the application
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in I.A.No.330 of 2018 was filed for the appointment of new Advocate
Commissioner for the very purpose which was allowed by the trial Court.
The reason stated in the affidavit filed by the respondents/defendants in
the application is that no survey number has been mentioned in the
report, no notice given to the parties and assistance of the revenue
officials were not taken while the Advocate Commissioner inspected the
property in dispute. In the Advocate Commissioner report, it is clearly
mentioned that notice has been given to the parties through post and after
that only he has inspected the suit property. In regard to the absence of
the survey number the Advocate Commissioner has not taken the
assistance of the revenue officials, the defendants/respondents would
have very well object the same by filing the application to
reject/object the Advocate Commissioner report which was not done
for the reason best known to them. The orders relied upon by the
learned counsel for the respondents are not applicable to this case for the
reason that in the case of A.Palaniappan Vs K.Nallasamy and others
reported in 2008 (3) CTC 602, the same commissioner has been directed
to inspect the property and file an additional report. In the other judgment
in the case of Marichamy Vs Dhatchinamoorthy in C.R.P. (PD) (MD)
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No.1040 of 2015 dated 20.06.2018, warrant has been issued to the same
commissioner and he was directed to file an additional report and the
Court has held that no prejudice would be caused to the respondent by
allowing the applications. But in the instant case, the Advocate
Commissioner who was appointed is one Mr.Vivekanandan who has
filed the earlier report in the year 2013, now a new commissioner by
name Mr.K.Rajesh Kumar has been appointed by the trial Court in
I.A.No.330 of 2018 by order dated 27.02.2019.
11. In view of the above factual matrix of the case and the ratio
laid down by the learned Single Judge of this Court in 2005 (1) CTC
356 in the case of Kitnammal Vs Nallaselvan and others and another
judgment in CRP (PD).No.1938 of 2013 reported in 2017 SCC Online
Mad 6982 in the case of Raju Vs Easwaran and others, this Court is of
the considered view that the order dated 27.02.2019 in I.A.No.330 of
2018 in O.S.No.1572 of 2013 passed by the V Additional District
Munsif Court, Coimbatore in appointing a new Advocate
Commissioner is hereby set aside. The learned counsel appearing on
either side requested that the trial Court may be directed to dispose
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of the suit within a stipulated period. Since the suit is of the year
2013, this Court is inclined to accept the above submission and the V
Additional District Munsif Court, Coimbatore is hereby directed to
dispose of the suit in O.S.No.1572 of 2013 as expeditiously as possible
preferably within a period of three months from the date of receipt
of a copy of this order.
12. The civil revision petition is allowed with the above direction
and observation. No costs. Consequently, connected miscellaneous
petition is also closed.
Index : No 21.11.2023
Internet : Yes
dpq
To
1.The V Additional District Munsif Court,
Coimbatore.
https://www.mhc.tn.gov.in/judis
J. SATHYA NARAYANA PRASAD, J.
dpq
21.11.2023
https://www.mhc.tn.gov.in/judis
