Madras High Court
Jaishankar vs Vadivel on 5 November, 2024
C.R.P.(PD).No.4426 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.11.2024
CORAM
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN, J.
C.R.P.(PD).No.4426 of 2024
and
C.M.P.No.24618 of 2024
Jaishankar ... Petitioner/Plaintiff
..Vs..
Vadivel ... Respondent/Defendant
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India, seeking to set aside the Fair and Final order dated 04.09.2024
made in I.A.No.3 of 2024 in I.A.No.223 of 2013 in O.S.No.72 of 2013 on
the file of the District Munsif Court, Dharapuram.
For Petitioner : M/s. Vigneshwari
For Mr.M.Guruprasad
For Respondent : Mr.N.Ponraj
1/7
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C.R.P.(PD).No.4426 of 2024
ORDER
This Civil Revision Petition arises against the order passed by the
learned District Munsif at Dharapuram in I.A.No.3 of 2024 in I.A.No.223 of
2013 in O.S.No.72 of 2013 dated 04.09.2024.
2. The Civil Revision Petitioner is the plaintiff in the suit. O.S.No.72
of 2013 is a suit for declaration of title, recovery of possession and for
mandatory injunction with respect to the suit property purchased by the
plaintiff on 23.09.2011 from the power agent of the defendant.
3. Pending the suit, the plaintiff took up an application in I.A.No.223
of 2013 seeking for appointment of an Advocate Commissioner to inspect
the suit property and to submit a Report. The said application was pending
for the period of nearly 7 years and it came to be allowed on 01.10.2020. An
Advocate Commissioner visited the suit property and also submitted the
Report on 08.03.2023. Not being satisfied with the Advocate
Commissioner's Report, the plaintiff filed objection to the same. Thereafter,
the plaintiff filed an application for reissue of a warrant of an Advocate
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Commissioner. The said application was received in I.A.No.3 of 2024. After
receipt of a counter from the defendant, the learned District Munsif at
Dharapuram dismissed the application. Hence the present Civil Revision
Petition.
4. I heard the learned counsel M/s. Vigneswari for Mr.Guruprasad
learned counsel appearing for the revision petitioner and Mr.N.Ponraj
learned counsel appearing for the respondent.
5. It is unfortunate that an application for appointment of an Advocate
Commissioner was kept pending for a period of 7 years and the Advocate
Commissioner has filed a report 3 years, after the date of appointment. The
delay in filing the report was further compounded by the plaintiff by not
filing his objections in time. For the mere fact that the plaintiff is not
satisfied with the Advocate Commissioner's Report, a Court cannot reissue
the warrant for an Advocate Commissioner. The Court should come to the
conclusion that the report of the Advocate Commissioner is defective and
only thereafter, it should either reissue the warrant to the same
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commissioner or scrap the report and appoint a fresh commissioner.
Therefore, the plea of the petitioner that since he is not satisfied with the
report, there should be a reissue cannot stand scrutiny.
6. This Court in Vemba Gounder vs. Pooncholai Gounder [AIR
1996 Madras 247] case has laid down the procedure which the Court has to
follow, when an objections filed to the report. The Court must look into the
objections filed to the Advocate Commissioner's Report and thereafter decide
whether the Advocate Commissioner's Report should be accepted or not. For
the said purpose, the Court is empowered to examine the Advocate
Commissioner by putting him in the witness box.
7. The petitioner having filed an objection to the report, the learned
District Munsif at Dharapuram, shall receive the objections presented by the
Civil revision petitioner and follow the directions of this Court in Vemba
Gounder's case, in particular paragraph Nos.30 and 31 of the said
judgment. It shall decide whether the Advocate Commissioner's Report
deserves acceptance or has to be rejected. In case, it decides to accept the
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report of the Advocate Commissioner, then, it is open to the petitioner to
work out his rights. Unless and until the procedure that has been set forth by
this Court in Vemba Gounder case is strictly adhered to, the report of the
Advocate Commissioner cannot be received. At the time of disposal of the
application, as directed by this Court, the learned Trial Judge shall strictly
adhere to the judgment of Vemba Gounder.
8. Therefore the Civil Revision Petition is disposed of with the
following directions:
(i) The objections that have been filed by the plaintiff to the Advocate
Commissioner's Report, which the Court is said to have returned on
07.10.2023 shall be received by the Court.
(ii) The Court shall peruse the Advocate Commissioner's Report along
with the objections filed and decide whether the Report should be received in
evidence or not.
(iii) Both parties may exercise the Commissioner, if, they so desire, to
point out to the Court, the error in the Report.
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(iv) In case, if the Court comes to a conclusion that the Report
requires to be revised, it shall either on an application of either parties or suo
motu reissue the warrant to the commissioner.
9. With the above directions, the Civil Revision Petition stands
disposed of. No costs. Consequently, the connected miscellaneous petition
stands closed.
05.11.2024
ssi
Index : Yes
Internet : Yes
Neutral Citation Case: Yes/No
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V.LAKSHMINARAYANAN, J.
ssi
05.11.2024
https://www.mhc.tn.gov.in/judis
