This Civil Revision Petition is filed by the defendant against the order dated 5.11.2008 passed in IA.No.512/2008 in OS.No.176/2008 passed by the learned District Munsif Court, Manaparai.
2. The respondent/plaintiff had filed the above said suit for permanent injunction restraining the petitioner from interfering with the possession and enjoyment of the suit property on the ground that the respondent is a tenant, who is carrying on the Pharmacy Business and that the agreement is oral and the period of tenancy is five years.
3. According to the petitioner, the lease was given to the respondent for a period of three years and the respondent had agreed to vacate the premises on the expiry of the lease period of three years and accordingly on 17.2.2008, he vacated the premises and also got the refund of Rs.1,00,000/-, which he had paid as advance. Pending the suit, the respondent has filed the said application for appointment of an Advocate Commissioner to note down the features relating to the fact that the respondent had been in possession of the property and the electricity service connection had been disconnected to the suit property.
4. It is the case of the respondent that the petitioner was trying to dispossess the respondent unlawfully by resorting to illegal methods of disconnecting the electricity service connection with an ulterior motive to paralyze the business of the respondent and force him to vacate from the suit property.
5. In the counter filed by the petitioner in the said application, it is stated that the lease was given to the respondent for a period of three years and as agreed, the respondent vacated the premises and also got the refund of Rs.1,00,000/-. Therefore, it was submitted by the petitioner that no Advocate Commissioner can be appointed in order to collect or gather evidence in respect of one party.
6. The court below appointed an Advocate Commissioner by the impugned order on the ground that for the purpose of elucidating the matter in dispute and to find out as to whether the electricity service connection is disconnected, there is necessity for appointment of an Advocate Commissioner and thus allowed the petition by the impugned order. Hence, this Civil Revision Petition has been filed.
7. Mr.K.Srinivasan, the learned counsel for the petitioner would contend that an Advocate Commissioner cannot be appointed to find out as to who is in possession and for collection of evidence and the impugned order of the court below is beyond the scope of the Order 26 Rule 9 of CPC. He would submit that disconnection of electricity service connection as alleged by the respondent could be proved by documents and such an appointment for the said purpose will only amount to collection of evidence. He would advert to the observations made by this court in a catena of decisions ascertaining that the factum of possession cannot be ascertained by seeking an appointment of an Advocate Commissioner and it must be proved by evidence.
8. The learned counsel for the petitioner would contend that the contention of the respondent that no prejudice would be caused, if a Commissioner is appointed cannot be a ground for appointment of an Advocate Commissioner.
9. In the case of Chinnathambi and others Vs. Anjalai [2007-1-MLJ- 513], it is held thus:-
"It is 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 said decisions." The said view has been reiterated in the decisions rendered in the cases of M/s.Benz Automobiles Private Limited by its authorised person under the Companies Act, S.Ramamurthy Vs. C.Mohanasundaram and others [2003-3-MLJ-391], Meenakshi Vs. Vennila and another [2008-5-CTC-181] and Chandrasekaran and 6 others Vs. V.Doss Naidu [2006-2-LW-159].
10. This court carefully considered the arguments of the learned counsel on either side. Order 26 Rule 9 of CPC reads as follows:- "Commission to make local investigation: In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
Provided that where the State Government has made the rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
11. It is evident from the aforesaid provision of law that a court may appoint an Advocate Commissioner in any suit where it deems a local investigation is requisite for the purpose of elucidating any matter in dispute. It is necessary to point out that in the affidavit filed in support of the said application, it is stated by the respondent that he is likely to be dispossessed at any time and he need to prove that he is in possession of the suit property, which necessitated him to file this petition for appointment of an Advocate Commissioner to inspect the physical features of the suit property, indirectly seeking to note down the factum of possession under the pretext of noting of the physical features. Such a reason ought to have been rejected by the court below as untenable.
12. As far as the factum of possession is concerned, the court alone could gather evidence through the parties and it cannot entrust the said matter to the Advocate Commissioner to collect evidence. Likewise, disconnection of electricity service connection can be proved by other means and evidence and it is not necessary to appoint an Advocate Commissioner for the said purpose. The judgement relied by the respondent rendered in the case of Karthikeyan Vs. Kannan @ Rajendran [2008-2-TLNJ-93-Civil] has no application to the case on hand, as the said suit was filed for specific performance and appointment of Advocate Commissioner was made to note down features of the suit property.
13. Taking into consideration the facts and circumstances involved in this case and also the decisions relied on by the learned counsel for the petitioner, this court is of the considered view that the impugned order appointing an Advocate Commissioner is unsustainable in law and hence, the same is liable to be set aside and accordingly, it is set aside.
14. In the result, this Civil Revision Petition is allowed. No costs. Consequently, the connected MP is closed.
Srcm To:
The District Munsif, Manaparai