Madras High Court
Eswari vs Karthick on 14 August, 2024
C.R.P.(PD).No.3278 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.08.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.3278 of 2024
and C.M.P.No.17536 of 2024
1. Eswari
2. Ramesh .. Petitioners
Versus
Karthick .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decretal order, dated 28.06.2024 made in
I.A.No.03 of 2024 in O.S.No.30 of 2024 on the file of the District Munsif
Court, Anthiyur by allowing this Civil Revision Petition.
For Petitioners : Mr.C.Munusamy
ORDER
This Civil Revision Petition arises against the order passed by the
learned District Munsif at Anthiyur in I.A.No.3 of 2024 in O.S.No.30 of
2024.
https://www.mhc.tn.gov.in/judis
2. O.S.No.30 of 2024 is a suit for permanent injunction restraining the
petitioners/defendants from in any way interfering with the
respondent's/plaintiff's right over a cart track which has been shown as the
suit schedule mentioned property.
3. The case of the respondent/plaintiff is that his predecessor in title
had purchased the property on 29.05.1979 which includes a cart track with
an extent of 9 feet. The respondent/plaintiff had subsequently purchased the
property on 02.07.2014 and even in the said document, the right to use the
pathway has been transferred in his favour. As the petitioners/defendants
are interfering with the possession of the property, he came forth with the
suit.
4. On being served with the summons, the first petitioner/defendant
filed a detailed written statement denying the existence of the pathway as
sought for by the respondent/plaintiff. He would plead that the
respondent/plaintiff has an access through an alternate pathway, and not the
one pleaded by him in the plaint.
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5. I.A.No.3 of 2024 was filed along with the suit for the purpose of
appointment of an Advocate Commissioner. After a counter had been filed
in the said application, the Trial Judge exercised his discretion and
appointed an Advocate Commissioner to visit the suit schedule mentioned
property and submit a report. Against which, the present petition is filed.
6. Heard Mr.C.Munusamy, learned Counsel for the
petitioners/defendants.
7. Mr.C.Munusamy would submit that if the document shows the
existence of a pathway, then, it is the duty of the respondent/plaintiff to
substantiate the same by way of reference to said document and he cannot
file an application for appointment of an Advocate Commissioner. He
would state that this is an attempt by the respondent/plaintiff to collect
evidence and therefore, it is not sustainable. In support of the said
argument, he relied upon Sanjeev Kumar Vs. Rajaram and Anr., 2023
Supreme (Mad) 2288 and Panneerselvam and Ors. Vs. Ramakrishnan,
2023 Supreme (Mad) 265. He would state that in both the cases, this Court
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had held that an Advocate Commissioner cannot be appointed. Therefore,
he would pray for admission of revision and an interim order.
8. I have carefully considered the submissions of Mr.C.Munusamy.
9. The facts of this case show that the respondent/plaintiff specifically
pleads the existence of a cart track, by which, he has an access to a public
road. He claims that this exists on the land right from 1979 onwards which
had been transferred to him in the year 2014. Per contra, the
petitioners/defendants have filed a specific written statement asserting that
there is no such cart track, and the cart track, on the basis of which the
respondent's/plaintiff's predecessor was in title and the respondent/plaintiff
have been enjoying, runs over different area altogether. The dispute that
arises in the case, which the Court has to answer is, on the very existence of
the cart track.
10. The only way, in which, the Court can come to a conclusion on
the existence of the cart track especially when there is a dispute on the
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identity or location of the cart track is by way of appointment of an
Advocate Commissioner. He is the eyes and ears of the Court.
11. It is here that I have to refer to the two judgments cited by
Mr.C.Munusamy. In Sanjeev Kumari's case (cited supra), the learned Judge
came to a specific finding that there is no dispute regarding identity or
location of the said property. Hence, the application for appointment of an
Advocate Commissioner which was dismissed by the Trial Court, was
confirmed by this Court. The same is the view that had been taken by the
learned Judge in Panneerselvam's case (cited supra). However, a perusal of
the plaint and written statement in this case, would show that there is a
dispute on the identity as well as the lie of the pathway. This certainly
cannot be proved by documents alone. In cases, such as this, a report of an
Advocate Commissioner would assist the Court to arrive at a just
conclusion.
12. With respect to the argument that the appointment of an Advocate
Commissioner would amount to collection of evidence, it is contrary to
Order XXVI Rule 10(2) of the Code of Civil Procedure. Under Order
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XXVI Rule 10, the report of an Advocate Commissioner is an evidence in
the suit. The report of the Advocate Commissioner is not to satisfy the
respondent/plaintiff or the petitioners/defendants, but, in order to elucidate
the fact in issue that the Court would have to answer. The learned Trial
Judge, in his discretion, has felt that an appointment of an Advocate
Commissioner would help him at the time of disposal of the suit. I do not
think that when a discretion has been exercised in accordance with Order
XXVI Rule 9 of the Code of Civil Procedure, a ground for revision is made
out.
13. Consequently, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
14.08.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The District Munsif,
Anthiyur.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
grs
14.08.2024
https://www.mhc.tn.gov.in/judis
