Madras High Court
Karthikeyan vs Kannan Alias Rajendran on 3 April, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.688 of 2008 and M.P.No.1 of 2008 Karthikeyan ... Petitioner/Petitioner/Plaintiff Vs Kannan alias Rajendran ... Respondent/Respondent/Defendant Prayer Petition filed under Article 227 of the Constitution of India, as against the order dated 07.02.2008 passed in I.A.No.6 of 2008 in O.S.No.48 of 2004 by the learned Additional District Court (Fast Track Court No.I, Tuticorin. !For Petitioner ... Mr.M.Ajmal Khan ^For Respondents ... Mr.V.Perumal :ORDER
This petition is focussed as against the order dated 07.02.2008 passed in I.A.No.6 of 2008 in O.S.No.48 of 2004 by the learned Additional District Court (Fast Track Court No.I, Tuticorin.
2. A re'sume' of facts absolutely necessary and germane for the disposal of this civil revision petition would run thus:
The suit in O.S.No.48 of 2004 was filed by the plaintiff seeking specific performance of the agreement to sell relating to the immovable property which is a vacant land. The trial commenced in the suit. When the matter was posted for adducing evidence on the defendant's side, the plaintiff filed I.A.No.6 of 2008 for appointment of a Commissioner to note the physical features. Thereupon, both sides contested the matter and the said I.A was dismissed.
3. Being aggrieved by the said order of dismissal, this revision is filed on the main ground that even though the application was filed for appointment of a Commissioner purely for the purpose of ascertaining the physical features of the property, nonetheless the lower Court dismissed it. It is the case of the plaintiff that after he took possession from the defendant, he made improvements in the vacant land, however, in the written statement, the defendant contended that the possession was not given by the defendant to the plaintiff, but the possession is with the son of the defendant who filed a separate suit for declaration and for injunction and that suit is also pending before the same Court and both suits are dealt with together; noting the physical features will not amount to fishing out the evidence and accordingly, he prayed for setting aside the order of dismissal.
4. The point for consideration is as to whether the lower Court was justified in dismissing the application for appointment of Commissioner for the reasons stated therein.
5. Heard both sides.
6. The learned Counsel for the petitioner would contend that the trial Court placed reliance on the decision of this Court in Chandrasekaran v. Doss Naidu reported in (2005) 3 MLJ 473, was cited out of context.
7. Here, for the purpose of enlightening the Court to understand the evidence properly alone, the appointment of Commissioner was sought for. Whereas the learned Counsel for the defendant would cite the aforesaid decision and develop his argument to the effect that under the pretext of noting down the physical features, the party cannot try to gather evidence relating to the possession of the suit property as in whose favour it exists. An excerpt from the cited decision, would run thus:
"17. The Commissioner is sought for to note down the existence of the house, age of the house, guava trees and coconut trees and their age. Though the appointment of Advocate Commissioner is sought for under the pretext of noting down the physical features, indirectly it only seeks to find out the factum of possession. The material issue in the suit is relating to the nature of possession and lawful right of the defendants (if any). That material issue of determining the possession cannot be left to the Advocate Commissioner. The appointment of Advocate Commissioner for making enquiry about the factum of possession of the property in dispute is improper since the same has to be adjudicated upon framing issues and recording the evidence."
Whereas, paragraph No.18 of the aforesaid decision can also be looked into and it is extracted hereunder for ready reference:
"18.Advocate Commissioner could be appointed only when the Court is satisfied that on the materials available on record, the party is not able to produce the desired evidence, the Court may assist the party to appoint the Advocate Commissioner to obtain the evidence. If really, the defendants are in possession could be proved by producing house tax receipts, adangal and such other desired oral evidence. When the concurrent findings in the earlier litigation in O.S.No.6 of 1972 and A.S.No.164 of 1977 are against the defendants, it would not be appropriate to appoint the Advocate Commissioner to note down the existence of the house trees, so as to bring out the possession of the defendants. In the facts and circumstances of the case, particularly in the light of the earlier judgment in O.S.No.6 of 1972 and A.S.No.164 of 1977, there cannot be mechanical and indiscriminate appointment of Advocate Commissioner. The contention that the defendants would pay the remuneration and that the plaintiff may not be prejudiced by appointment of Advocate Commissioner has no force."
8. It is therefore crystal clear that the above excerpts would evidence that the facts involved in that case were different from the facts involved in this case.
9. Here, absolutely I could see no attempt on the part of the plaintiff to find out through the Commissioner as to who is actually in possession of the suit property. The prayer is only to note down the physical features and not about the age of the developments or when it was made etc. Such exercises were involved in the cited decision. But, in this case, it is purely for the purpose of of noting down the physical features and the trial Court simply assumed that because the defendant is disputing the possession, the Commissioner if appointed, it will amount to gathering evidence on behalf of the plaintiff through the Commissioner to prove his alleged possession.
10. The learned Counsel for the defendant would argue that belatedly this application is filed. Each and every case has to be analysed based on its own merits. Here, it appears, already on the plaintiff's side, evidence was adduced. However, it appears, the defendant challenged the factum of possession of the suit property with the plaintiff and in that process, cross-examination also was conducted.
11. If the Commissioner goes and visits the suit property and notes down the physical features, certainly the Court would be in a better position to analyse and understand as to whether the plaintiff or the defendant is speaking the truth with regard to the actualities in the suit property. More often than not the Courts are coming across pleas quite antithetical to what is physically existing in the land. In such a case, in matters of this nature, it cannot be construed that the Commissioner appointed is only to note the physical features and not to find out who is in possession.
12. Hence, in this view of the matter, I am of the considered opinion that the trial Court wrongly relied upon the cited decision and dismissed the prayer of the plaintiff.
13. I would like to make it clear, while allowing this Civil Revision Petition that the Commissioner shall be appointed by the trial Court purely for the purpose of noting down the physical features in the suit property and not relating to any other purpose. Noting down the physical features is different from analysing or examining as to when those modifications came into existence in the land. As such, accordingly, the trial Court is directed to appoint the Advocate Commissioner and deal with the matter further. The entire process shall be completed by the Advocate Commissioner within a period of two weeks from the date of receipt of the Commissioner warrant.
14. The learned Counsel for the defendant in an exemptore manner would pray that a time frame may be fixed for the early disposal of the suit itself. I could see considerable force in the submission made by the learned Counsel for the defendant and accordingly, the trial Court is directed to dispose of the original suit itself on merits within a period of two months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.
rsb To The Additional District Court (Fast Track Court No.I, Tuticorin.