This Civil Revision Petition is filed by the plaintiff against the order passed by the learned Principal District Judge, Trichy dated 21.8.2003 in AS.No.341/1994, suo motu appointing the second Advocate Commissioner to measure the properties.
2. The brief facts, which are essential for the disposal of this Civil Revision Petition, are as follows:-
The petitioner filed the suit in OS.No.1657/1990 before the learned Principal District Munsif, Tiruchy for declaration and mandatory injunction i.e. to declare that the B-Schedule property belongs to her absolutely and for removal of the construction made by the respondents/ defendants over the said property.
3. The plaintiff claims title to 4 cents out of 8 cents by way of a settlement deed dated 8.10.1984 executed by her parents and she was put in possession of the same and the remaining 4 cents was sold to the respondents' predecessor by the original owner Mariaselvathammal. According to the petitioner, the respondents encroached upon the petitioner's land and put up construction and hence, the suit was filed by her for declaration and mandatory injunction.
4. The suit was decreed by the trial court by judgement and decree dated 8.8.1994, as against which, the respondents filed an appeal in AS.NO.341/1994 before the District Judge, Tiruchy. The lower appellate court by judgement and decree dated 7.9.1995 set aside the judgement and decree of the trial court and remanded the matter to the trial court for fresh disposal. As against the order of remand, the petitioner filed an appeal in CMA.No.1545/1995 before this court and this court by order dated 18.2.2002, set aside the order of remand and directed the lower appellate court to decide the appeal on merits within a period of three months from the date of receipt of a copy of the order.
5. Thereafter, it appears that the appeal was dismissed for default twice and the same was restored. Without hearing the arguments of both sides, the lower appellate court has suo moto appointed another Advocate Commissioner to measure the properties of both the plaintiff and the defendants with the help of the surveyor and directed the Advocate Commissioner to file a report on or before 5.9.2003. As against this order, this Civil Revision Petition is filed by the plaintiff.
6. Admittedly, in the trial court an Advocate Commissioner was appointed by order dated 30.8.1990 and again warrant was reissued to the same Advocate Commissioner and he had filed a report along with the surveyor's plan on 21.8.1991. While remanding the matter to the trial court for fresh disposal, the lower appellate court directed the trial court to reissue warrant to the same Advocate Commissioner to measure the property as per Ex.C6 Surveyor's plan and to fix the extent of 4 cents of land, which was conveyed under Ex.A4. This court by order dated 18.2.2002 set aside the said order of the lower appellate court and has observed as follows:-
"I am not able to accept the said conclusion of the lower appellate court. Even if the lower appellate court wants to have another report of the commissioner, it could have directed the trial court to appoint a Commissioner and give a finding on that. Moreover, the lower appellate court has not given any finding to the effect that he is not in position to decide the issue on the basis of the other evidence available on record. So I do not find any reason to sustain the order of remand made by the lower appellate court. The order of the lower appellate court remanding the suit to the trial court is set aside and the lower appellate court is directed to decide the appeal on merits within a period of three months from the date of receipt of a copy of this order."
7. It was made clear by this court that the Advocate Commissioner's report and the surveyor's plan were very much available before the lower appellate court and the lower appellate court has not given any finding to the effect that he is not in a position to decide the issue on the basis of the other evidence available on record and thus directed the lower appellate court to decide the appeal with the available evidence on record.
8. The lower appellate court in utter disregard to the observations made by this court, without assigning any reason has appointed another Advocate Commissioner to measure the properties of both the parties and file a report, which on the face of it is liable to be set aside. That apart, there is no provision under Order 26 Rule 10 of CPC for appointing more than one Advocate Commissioner or to reject the report of the Advocate Commissioner without any justification. The law in this regard is well settled by precedents that as per normal rule two separate commissions should not be issued to deal with one and the same subject and to treat the report of both the Commissioners as evidence in the case.
9. The learned counsel for the petitioner drew the attention of this court to the decisions of this court rendered in the cases of R.Nandakumar Vs. Dindigul Cooperative Housing Building Society Ltd by its Secretary, Dindigul [2008-6-MLJ-363] and Anna Sudha Devi Vs. P.George Samuel [2009-2-CTC-205] wherein it is consistently held that a second Advocate Commissioner cannot be appointed without setting aside the report of the first Advocate Commissioner. So only when the court is not satisfied with the report of the first Advocate Commissioner, it can direct him to submit a fresh report or it can set aside his report and issue a second commission under Rule 10(3) of Order 26 of CPC.
10. In the present case, it is seen that the lower appellate court has not heard the arguments of both the parties and suo motu without satisfying himself whether the report filed by the first Advocate Commissioner is unsatisfactory, he has appointed the second Advocate Commissioner. Time and again, the courts have condemned or deprecated the tendency of the subordinate courts in appointing the second Advocate Commissioner before superseding the report and proceedings of the first Advocate Commissioner, but, the lower appellate court without assigning any tangible reasons for making such appointment proceeded to appoint a second Advocate Commissioner. It is not the case of either parties that the first report did not contain necessary data and particulars nor any motive was attributed to the report filed by the 1st Advocate Commissioner. In such circumstances, I am of the considered view that in the absence of any material to infer that the lower appellate court was dissatisfied with the proceedings and report of the 1st Advocate Commissioner, appointing of second Advocate Commissioner is unsustainable and the impugned order of the lower appellate court is liable to be set aside and accordingly, it is set aside.
11. In the result, this Civil Revision Petition is allowed. No costs. Consequently, the connected MP is closed. In view of the order passed by this court in CMA.No.1545/1995 dated 18.2.2002 and since the appeal is of the year 1994, the court below is bound to consider the other evidence available on record and dispose of the appeal on merits and in accordance with law as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this order.
Srcm To The learned Principal District Judge, Trichy