THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.3384 of 2008 and M.P.No.1 of 2008
1. Vijay Nataraj
2. Rajesh ... Petitioners vs.
Manoranjitham ... Respondent This civil revision petition is preferred against the fair and final order of the learned I Additional District Munsif of Salem in I.A.No.1645 of 2007 in O.S.No.268 of 2007 dated 05.03.2008.
Animadverting upon the order dated 05.03.2008 passed by the learned I Additional District Munsif of Salem, in I.A.No.1645 of 2007 in O.S.No.268 of 2007, this civil revision petition is focussed.
2. Heard both sides.
3. An epitome and summarisation of the facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The respondent herein filed the suit O.S.No.268 of 2007 seeking the following reliefs:
"a) granting permanent injunction restraining the defendants and their men in any way disturbing the plaintiff's peaceful possession and enjoyment of the suit property;
b) awarding costs of the suit."
4. During the pendency of the suit, I.A.No.1645 of 2007 was filed by the defendants to get an Advocate Commissioner appointed so as to visit the suit property and note the physical features and report. However, the trial Court dismissed it. Being aggrieved by and dissatisfied with the order of the lower Court, this revision has been filed on various grounds.
5. The learned counsel for the revision petitioners placing reliance on the grounds of revision would develop his argument to the effect that the plaintiff is disputing the identity of the property and in order to dispel the cloud that would be created during trial, it is just and proper to appoint an Advocate Commissioner so as to visit the suit property and note the physical features after identifying the same.
6. Whereas the learned counsel for the respondent/plaintiff would oppose the prayer for appointment of Advocate Commissioner by citing the decision of this Court reported in 2006(4)LW 516 [1. Chinnathambi and others vs. Anjalai]. An excerpt from it would run thus:
"6. We shall now consider some of the decisions rendered by various Courts in this regard.
(i) In a decision reported in Puttappa vs. Ramappa (AIR 1996 Karnataka 257), in paragraph 3, the Court held as follows:
"3. ... a Commissioner cannot be appointed to find out as to who is in possession of the property. Under Order 26, C.P.C., a Commissioner can be appointed to make local investigation to investigate the facts or other materials which are found in the property and to make a report in regard to that matter of the Court. In a suit for injunction the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of the evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner who cannot find out as to who is in possession of the property. Accordingly, the Lower Court was right in rejecting the application.
(ii) In a decision reported in Union of India and another vs. M/s Kripal Industries (AIR 1998 Rajasthan 224), the Court in paragraph 18 has held as follows:
"18....power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist party to collect evidence where it can get evidence itself. In the case on hand the written statement has already been filed, therefore, the disputed question of fact can be adjudicated upon by the Court after framing the issues and recording the evidence of the parties. For such purpose assistance of Commissioner is neither necessary nor justified."
(iii) In a decision reported in Penta Urmila and others vs. Karukola Kumarasamy (2005 (2)ALD 130), the Court in paragraph 6 has held as follows:
"6. In a suit for permanent injunction, the vital and important issue is whether the plaintiffs are in possession of the suit schedule land and whether there was attempt by the defendant/s to interfere with such possession of plaintiffs. The burden is entirely on the plaintiffs to bring convincing and cogent evidence on record and for so doing, it is not permissible for them to invoke Order XXVI Rule 9, which is intended for difference purpose. Further, if at this stage, Advocate Commissioner files a report, as directed by Appellate Court with the assistance of the Mandal Surveyor it would certainly amount to introducing additional evidence which is ordinarily not permissible unless proper application is made under Order XLI Rule 27 satisfying the conditions therein....."
7. In a matter relating to investigation in to the disputed question of fat of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by himself. Thus in a case, where the claim of the plaintiff that, she is in possession of the disputed property is denied by the defendants by filing written statement, the disputed question of fact can be adjudicated upon by the Court, after framing of issues and recording evidence of the parties.
8. .... It is a well accepted principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated only by oral and documentary evidence. Under such circumstances, the order of the Lower Court suffers from material irregularity and it is not in accordance with the principles laid down in the above decisions."
7. The learned counsel for the respondent/plaintiff would submit that it is for the plaintiff to prove the case being dominus litis and it is not for the defendants to pray for appointment of an Advocate Commissioner and that too in a suit for permanent injunction filed by the plaintiff, for which the learned counsel for the revision petitioners would convincingly and appropriately submit that here the prayer is not for appointment of an Advocate Commissioner to find out as to who is in actual possession of the suit property but his prayer is only for noting the physical features so as to enlighten the Court relating to factual aspect involved in this case.
8. The cited decision in my opinion is on the point that a Commissioner should not be appointed to find out possession and that would amount to delegating the power of the Court to the Commissioner. There is no quarrel over such a proposition as it is a well settled one. In this case, there are previous litigations also as the learned counsel for the revision petitioner would submit that earlier the defendants in the present suit filed RCOP as against the husband of the plaintiff in the present suit and got a decree also and at the time of execution, this present suit erupted and that too based on identity of the property also.
9. Hence in these circumstances, I am of the considered view that an Advocate Commissioner could be appointed so as to locate the suit property involved in the suit and note down the physical features without observing anything about as to who is in possession. Accordingly, the order of the lower Court is set aside and the I.A.No.1645 of 2007 to the limited extent as set out supra is allowed.
Accordingly, this civil revision petition is allowed. No costs. Consequently connected miscellaneous petition is closed.
gms To I Additional District Munsif of Salem