The revision petitioner/plaintiff has filed this Civil Revision Petition as against the order dated 22.04.2008 in I.A.No.84 of 2007 in A.S.No.77 of 2003 passed by the learned Additional Subordinate Court, Dindigul, in dismissing the application filed by the revision petitioner under Order 26 Rule 9 and Section 151 of the Code of Civil Procedure, praying for appointment of an Advocate Commissioner.
2. The first appellate Court while passing order in I.A.No.84 of 2007 in A.S.No.77 of 2003 has inter alia, opined that on the side of the revision petitioner/plaintiff, sixteen documents have been marked and on the side of the respondent/defendant twenty four exhibits were marked and further, Exs.X.1 and X.2 were marked apart from the oral evidence tendered by the parties and a decision can be arrived at only based on the circumstances of the aforesaid materials and further that, the revision petitioner/plaintiff has filed the application for an appointment of advocate commissioner belatedly with a view to protract the proceedings and consequently, dismissed the application without costs.
3. Dissatisfied with the order passed by the learned Additional Subordinate Judge, Dindigul, in I.A.No.84 of 2007 in A.S.No.77 of 2003 dated 22.04.2008, the revision petitioner/plaintiff has projected this revision petition.
4. The learned Counsel for the revision petitioner/plaintiff urges before this Court that the first appellate Court should have seen that the point to be decided in the appeal is whether the suit property falls within S.No.360/3 or S.No.361 and further that, the first appellate Court ought to have seen that the property can be identified even if an Advocate Commissioner along with a Surveyor inspected the property and measured the same with the help of the revenue records and moreover, the first appellate Court has not noticed the decision in P.R.Chockalingam v. N.Pitchai and another reported in 2003(1) CTC 321 wherein it is held that the application for appointment of an Advocate Commissioner can be granted at the appellate stage as well, but the fact is that the suit property is in Old S.No.360/3 and New S.No.439/24 and that the respondent/defendant has filed the documents pertaining to S.No.361 and claimed the title and therefore, it has become essential and necessary to find out the identity of the suit property and also that by means of the appointment of an Advocate Commissioner, the work of the Court will also be reduced and therefore, prays for allowing the civil revision petition to prevent aberration of justice.
5. Per contra, the learned Counsel for the respondent/defendant submits that the first appellate Court has come to the proper conclusion in dismissing I.A.No.84 of 2007 in A.S.No.77 of 2003 praying for appointment of an Advocate Commissioner and this Court sitting in revision, at this stage, need not interfere with the orders passed by the first appellate Court.
6. It is to be noted that the revision petitioner/plaintiff has filed the main suit for the relief of declaration and consequent permanent injunction restraining the defendant and his men not to interfere with the plaintiff's enjoyment and possession of the property.
7. The trial Court by its judgment in O.S.No.67 of 1992 dated 13.06.2002, on appreciation of oral and documentary evidence adduced by the respective parties, has finally dismissed the suit without costs.
8. It is not out of place to make a mention that before the trial Court, patta Ex.P.12 for 1,407 fasli in favour of the plaintiff has been marked. However, on the side of the respondent/defendant, D.W.3, Deputy Tahsildar, has stated that S.No.360/3 pertains to Government poramboke land and the same is Grama Natham. Since the asked for documents could not be produced, the patta, Ex.P.12 in the name of the plaintiff has been filed. Ex.X.1, Natham land tax clean patta and citta, have been filed before the trial Court and sub-division as prayed for by the revision petitioner/plaintiff has also been filed as Ex.X.2 before the trial Court.
9. Admittedly, the main suit has been filed by the revision petitioner/plaintiff for the relief of declaration and consequent, injunction. It is true that an appeal is a continuation of further proceedings in law. The appointment of an Advocate Commissioner is a discretionary relief to be granted by a Court of law in a given case based on the circumstances and facts of each case. An Advocate Commissioner cannot be appointed for the purpose of procuring or gathering evidence. Moreover, a Court of law ought not to mechanically order the appointment of an Advocate Commissioner taking a liberal view based on the request so made without due application of its mind. If a party can produce the best evidence to substantiate his or her case, then the plea for appointment of an Advocate Commissioner can only be stated to be a luxury and not a case of necessity.
10. In view of the fact that A.S.No.77 of 2003 is pending on the file of the learned Additional Subordinate Judge, Dindigul and notwithstanding the fact that in the pending appeal, I.A.No.84 of 2007 in A.S.No.77 of 2003 has been filed praying for an Advocate Commissioner and the same having been dismissed by the first appellate Court, this Court is of the considered view that the application in I.A.No.84 of 2007 filed by the revision petitioner/plaintiff praying for appointment of an Advocate Commissioner is not a one to be embarked upon under the overall assessment of the case in an integrated manner and resultantly, this Court does not find any patent illegality or material irregularity in the order passed by the first appellate Court in dismissing the application for appointment of an Advocate Commissioner.
11. In the result, the Civil Revision Petition is hereby dismissed leaving the parties to bear their own costs. The order passed by the first appellate Court in I.A.No.84 of 2007 in A.S.No.77 of 2003, is affirmed by this Court for the reasons assigned in this revision. Considering the facts and circumstances, however, the first appellate Court namely, the learned Additional Subordinate Judge, Dindigul, is hereby directed to dispose of the main appeal in A.S.No.77 of 2003 within a period of three months from the date of receipt of a copy of this order and to report compliance to this Court without fail. It is made clear that the first appellate Court shall dispose of the appeal in A.S.No.77 of 2003 uninfluenced with any of the observations made by this Court in this revision. Added further, the parties are directed to co-operate with the first appellate Court in regard to the completion of proceedings. Consequently, the connected Miscellaneous Petition is dismissed.
rsb To
1.The Additional Subordinate Court, Dindigul.
2.The Sub Assistant Registrar (Judicial), Madurai Bench of Madras High Court, Madurai, to watch and report.