This Civil Revision Petition is filed by the defendants to set aside the order and decretal order passed in IA.No.166/2008 in OS.No.92/2006 dated 5.9.2008 by the learned Principal Sub Court, Thenkasi, appointing an Advocate Commissioner to ascertain the value of the suit property with the help of an qualified Engineer.
2. The petitioners have filed the above said suit for the relief of declaration and recovery of possession in respect of the suit properties. The respondents/defendants have filed their written statement contending inter alia that the petitioners are not entitled to the claims in the suit and that the suit properties are not valued properly and also questioning the pecuniary jurisdiction of the court below to try the suit.
3. Pending the suit, the respondents have filed an application in IA.NO.256/2007 for appointment of an Advocate Commissioner to ascertain the market value of the suit property and the same had been resisted by the petitioners. The trial court dismissed the said petition on the ground that no issue had been framed regarding the valuation of the suit property placing reliance on the decision of this court rendered in the case of Thayammal Vs. Peria Isakki Thevar and two others [2002-3-LW-607].
4. Subsequently, an additional issue has been framed by the trial court as to whether the said court has pecuniary jurisdiction to try the suit. While so, the respondents has filed an application in IA.No.166/2008 for appointment of an Advocate Commissioner to ascertain the market value of the suit property and the trial court has allowed the application on the ground that there is a requisite for the ascertainment of the market value of the property in view of the contention raised by the respondents questioning the pecuniary jurisdiction of the court. Aggrieved over the same, the petitioners have preferred this Civil Revision Petition.
5. Mr.A.Veerasamy, the learned counsel for the petitioners would submit that when a similar application filed by the respondents was dismissed, another application for the same purpose is not maintainable. He would further contend that the market value can be ascertained only by adducing evidence at the time of trial and it cannot be done with the assistance of the report filed by the Advocate Commissioner in that regard. The learned counsel would place reliance on the decision of this court rendered in the case of 2002-3-LW-607 which was cited even before the trial court.
6. In the decision cited supra, this court has pointed out to non framing of the issue as to the valuation of the suit property and the consequential question of jurisdiction of the court and in such circumstances did not find favour in appointing an Advocate Commissioner to ascertain the market value.
7. In the present case, admittedly an issue has been framed regarding the competence of the trial court in trying the suit for want of pecuniary jurisdiction. That apart, pursuant to the order passed by the trial court, the Advocate Commissioner had inspected the property along with Engineer and had filed his report.
8. Be that as it may. A pertinent point has been raised by the learned counsel for the petitioners that a similar petition is not maintainable for the same purpose when the earlier application is dismissed by the trial court. In response to the said contention, the learned counsel for the respondents submitted that the dismissal order in the interlocutory stage would not operate as res-judicata and it is always open to the trial court to require evidence, if it feels necessary to appoint an Advocate Commissioner to make local investigation and ascertain the market value of the suit property.
9. It is relevant to refer to the some of the decisions on this aspect. In the case of Pandurang Ramachandra Mandlik and another vs. Shanta Bai Ramachandra Ghatge and others [AIR-1989-SC-2240], it is held that Section 11 of CPC is applicable only to the suit and not to the other proceedings.
10. A Division Bench of the Karnataka High Court in [1983-1-KLJ- Short Notes of Cases] has held that "so far as the interlocutory matters are concerned, the principles of res-judicata do not strictly apply."
11. Their Lordships in the case of U.P.E.Supply Co. Vs. T.N.Chatterjee [AIR-1972-SC-1201], has held that the principles of res judicata is not applicable to interlocutory orders as they are not final orders.
12. Even in the present case, the lower court has not given a finding on merits in the earlier application and therefore, it cannot be treated as final and conclusive. In view of the decisions referred above, the second application for the same relief is maintainable as it has not been decided finally and conclusively.
13. Order 26 Rule 9 of CPC enables the court to issue commission for local investigation amongst others for ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits. The Rule 10 of Order 26 of CPC provides for procedure of commission and in this process, the Commissioner may examine any person as a witness. The Commissioner when he submits his report, both the parties can let in contra evidence and demonstrate before the court that the opinion given by the Commissioner is wrong for one reason or the other with regard to the market value of the property.
14. This court has upheld the appointment of Advocate Commissioner to ascertain the market value of the property in the decisions reported in the cases of V.Sreekantan and another Vs. The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District [2001-2-CTC-196] and Special Tahsildar and Land Acquisition Officer, Nagercoil [2003-1-MLJ]. That apart, the validity of the order appointing Commissioner can be challenged in appeal and not by invoking extraordinary jurisdiction under
Article 227 of the Constitution of India.
15. This court in the case of A.Nagarajan Vs. A.Madhanakumar [1996- I-CTC-229] has held thus:-
"10. It is well settled that
Article 227 of the Constitution can be invoked only in the following circumstances namely when there is lack of jurisdiction, erroneous assumption of jurisdiction of excess of jurisdiction or where there is gross dereliction of duty, flagrant violation of law, error of law apparent on the face of the record or where there is violation of principles of natural justice and finding is based on no material or whatever which is by very nature arbitrary or capricious. The power conferred on the court to appoint a Commissioner for local inspection is for better appreciation of the evidence already on record. The trial court had the jurisdiction to decide under what circumstances it can appoint a Commissioner. The Commissioner so appointed is not performing a judicial act and it is a "ministerial Act". Nothing is left to discretion and there is no occasion to use judgement or adjudicate the issue involved but only noting the details and reporting the actual state of affairs. Such report does not automatically form part of evidence in the proceeding and the court has power to confirm, vary or set aside the report or issue a new commission. Hence there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Only an examination of the Commissioner, the report forms part of the record and evidence. The opposite party has opportunity to cross examine the Commissioner. Of course, failure to do so to elicit such information as it required, cannot at later stage object to the report being accepted on the ground Commissioner not examined or cross examined. The contention of the learned counsel that the impugned order is per se illegal, unsustainable and amounts to delegating the functions of the Court to decide the issue are misconceived and hence rejected..."
16. In view of the reasons stated above, I see no reason to set aside the impugned order and hence, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The Principal Sub Court, Thenkasi.