Madras High Court
Parameshwari vs M.A.Sardhar Khan ... 1St on 8 September, 2023
C.R.P.(MD)No.1680 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.1680 of 2017
and C.M.P.(MD)No.9268 of 2017
1.Parameshwari
2.Kaveri Servai (Died)
3.K.Samayamuthu
4.Jothipandian (Died)
Memo presented before this Court on 28.04.2023
is recorded as the petitioners 2 and 4 died vide
Court order, dated 28.04.2023. ... Petitioners/Petitioners 1 to7&9 /
Defendants 4 to10&12
5.K.Alagarsamy
6.S.Karuppiah
7.R.Gnanagurusamy
8.T.Ravichandran
9.K.Mahali
10.K.Saraswathi
(Petitioners 9&10 are brought on record as LRs
of the deceased P2, as per the order of this Court,
dated 07.08.2023, in CMP(MD)No.9766/2023)
... Petitioners /LRs of the 2nd petitioner
Vs.
1.M.A.Sardhar Khan ... 1st Respondent /1st Respondent/Plaintiff
1/10
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C.R.P.(MD)No.1680 of 2017
2.U.Mustafa Kamal @ U.M.K.Basha
3.K.Rameeja Begum
4.Faritha Begum ... Respondents 2 to 4/
Respondents 2 to 4/ Defendants 1 to 3
5.Muthuselvi ... 5th Respondent / 8th Petitioner /
11th defendant
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and executable order, dated
14.07.2017, passed in I.A.No.549 of 2017, in O.S.No.136 of 2011, on
the file of the VI Additional District Judge, Madurai.
For Petitioners : Mr.V.Ramakrishnan
For Respondents : Mr.A.Arumugam
for M/s.Ajmal Associates for R1
: No appearance for R2 to R5
ORDER
The instant Civil Revision Petition has been filed against the
order, dated 14.07.2017, passed in I.A.No.549 of 2017, in O.S.No.136 of
2011, on the file of the VI Additional District Judge, Madurai.
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C.R.P.(MD)No.1680 of 2017
2. The revision petitioners are the defendants 4 to 10 &12, the
first respondent herein is the plaintiff, the respondents 2 to 4 herein are
the defendants 1 to 3 and the fifth respondent herein is the 11th defendant
before the Court below. The petitioners 9 & 10 herein are the legal heirs
of the deceased second petitioner / second defendant.
3. For the sake of convenience, the parties are referred to
according to their litigative status before the Court below.
4. The defendants have filed an application for appointment of
Advocate Commissioner to find out whether the suit properties are in
existence as mentioned in the plaint and whether they are corroborating
the properties mentioned in the alleged settlement deed, dated
24.09.1980 as well as suit in O.S.No.297 of 1983. It is submitted that the
validity of the settlement deed has been confirmed upto the Supreme
Court. However, though they filed a suit based upon the settlement deed,
dated 24.09.1980, they have sought for the relief of delivery of
possession and declaration of title, in respect of the different properties.
The learned counsel for the defendants would submit that the plaintiff by
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C.R.P.(MD)No.1680 of 2017
his ingenius pleading has incorporated the defendants property, as the
property derived through settlement deed, dated 24.09.1980. It is the
specific contention of the learned counsel for the defendants that the
properties referred to in the plaint is not the property referred in the
settlement deed. Therefore, it is the submission of the learned counsel
for the defendants that only to elucidate the said factum, the appointment
of Advocate Commissioner is sought for.
5. Per contra, the learned counsel for the plaintiff would
submit that there is a delay in filing such application, and there is no
pleadings in respect of the dispute regarding the identity of the property.
Therefore, he would submit that the finding of the Court below liable to
be confirmed.
6. I have given my anxious consideration to the either side
submissions.
7. The learned counsel for the defendants would rely upon the
judgment of this Court reported in AIR-1986-(Mad)-33 (Ponnusamy
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C.R.P.(MD)No.1680 of 2017
Pandaram V. The Salem vaiyappamalai Jangamar Sangam). Wherein
this Court has appointed the Advocate Commissioner in order to
elucidate a point which may otherwise be left in doubt or ambiguity on
record. The relevant portion of the judgment is as follows-
“6. The object of local investigation under 0.
XXVI, R. 9 of the Code cannot be littled. Its object is to
collect evidence at the instance of the party who relies on
the same and which evidence cannot be taken in court but
could be taken only from its peculiar nature, on the spot.
This evidence will elucidate a point which may otherwise be
left in doubt or ambiguity on record. The Commissioner, in
effect, is a projection of the Court, appointed for a
particular purpose. In this regard, the implication of 0.
XXVI, R. 10 cannot be lost sight of when it says that the
report of the Commissioner and the evidence taken by him
shall be evidence in the suit and shall form part of the
record. We are not very much concerned with the possessive
value of the report of the Commissioner. But the party has
got a right to place evidence which he could require to
substantiate his case before the Court and, of course,
subject to the law of evidence and the Code, and it is the
duty of the Court to receive such evidence unless there are
other justifiable factors in law to decline to receive such
evidence. The law of evidence enjoins upon the party to
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C.R.P.(MD)No.1680 of 2017
prove the fact which he relies on and in that sense, an
obligation is cast upon the party and if he fails to discharge
that obligation, adverse consequence will follow and he will
have to face the repercussions of the same. This right of the
party to adduce evidence gets adjudicated in the
interlocutory proceedings under 0. XXVI, R. 9. When there
is a decline by the Court to issue the commission asked for
to make local investigation, the purpose behind it being
significant and in stated cases, imperative too, that order
certainly disposes of the right claimed by the party to place
the requisite evidence on his behalf. The question as to
whether a particular order adjudicates some rights or
obligations of the parties in controversy will depend upon
the nature or the right or obligation and it is not possible to
lay down a uniform rule and no decision, including any of
the highest Court in the land, attempted to do so. Untwalia,
J. as he then was, in the case cited above enumerated
examples on either side.”
8. In another judgment reported in 2005-3-MLJ-525
(Sivagurunathan V. Ramalingam). This Court has held that, when the
location of the plaintiff's property and extent is denied, Commissioner
ought to have been appointed for effectively adjudicating the dispute.
The relevant portion of the judgment is as follows-
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C.R.P.(MD)No.1680 of 2017
“11. In the petition, the plaintiff has sought for
appointment of Advocate Commissioner to note down the
physical features and also to measure the suit property with
the help of surveyor and to submit a report with a plan
drawn to scale. But the learned District Munsif dismissed
the application on the ground that the application has been
filed seeking for issuance of commission to note down the
possession and the existence of house. There is no proper
exercise of discretion and the impugned order suffers from
serious infirmity. when the location of the plaintiff's
property and the extent is denied, Commissioner ought to
have been appointed for effectively adjudicating the
dispute. Report of the Advocate Commissioner and the plan
drawn to scale would considerably reduce the oral
evidence which aspect was not taken into consideration by
the lower Court.”
The above judgment has been subsequently followed by this Court in a
judgment reported in 2021-0-Supreme (Mad.)-813 (C.B.Manokaran V.
P.Valli).
9. By relying the above judgment, the learned counsel for the
defendants would submit that the very order of the dismissal is without
any basis and therefore, prayed to allow this application.
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C.R.P.(MD)No.1680 of 2017
10. It is the specific submission of the defendants that though
the plaintiff has contended that they are deriving the title through the
settlement deed, dated 24.09.1980, the suit properties are not the
properties referred in the settlement deed. The learned counsel would
further submit that though the settlement deed confirmed up to Supreme
Court, they were not party to this proceedings and that the plaintiff has
played fraud against him. Only in such back ground the defendants
wanted to correlate and elucidate that the schedule of property is not the
property referred in settlement deed. For such purpose only they want
the appointment of Commission. It is settled principle of law that when
the identity of the property in dispute, then it is incumbent upon the
Court to appoint a Commissioner. Therefore, they prayed for
appointment of Advocate Commissioner.
11. No doubt, the realization of the defendants to file
Commission application came little latter, but, that can not be a reason to
reject the essential application for appointment of Commissioner. It is
pertinent to mention here that the very appointment of Commission
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C.R.P.(MD)No.1680 of 2017
would definitely reduce much oral evidence and the report would be
helpful for effective disposal of the suit.
12. Therefore, this Court is of the view that the order of the
Court below is liable to be interfered with. Hence, the instant Civil
Revision Petition is allowed and the Court below is directed to appoint
the Advocate Commissioner with in a period of two weeks from the date
of receipt of copy of this order and on appointment of Advocate
Commissioner, the Commissioner is directed to complete the warrant of
commission within a period of six weeks from the date of receipt of this
warrant. If the Commissioner require any assistance from surveyor, the
concerned authority is directed to provide necessary assistance. There
shall be no order as to cost. Consequently, connected Miscellaneous
Petition is closed.
08.09.2023
NCC : Yes/No
Index :Yes/No
Ls
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C.R.P.(MD)No.1680 of 2017
C.KUMARAPPAN.,J.
Ls
To
1.The District Munsif cum Judicial Magistrate,
Sivagiri.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Order made in
C.R.P(MD)No.1680 of 2017
08.09.2023
https://www.mhc.tn.gov.in/judis
