Madras High Court
Kandipalayam Rajavaikkal Siru ... vs Nanjay Edayar Vivasaiyigal Sangam on 25 October, 2016
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :25.10.2016
CORAM
THE HON'BLE MR. JUSTICE T.MATHIVANAN
C.R.P (PD) No.1751 of 2005
&
CMP.19708 of 2005
1.Kandipalayam Rajavaikkal Siru Vivasaiyigal
Neeretru Pasana Sangam
Vadakarai Athur
Paramathy Velur Taluk by its President
P.Muthusamy
2.Chinnacholipalayam Periya Marudhur
Siru Vivasaiyigal Neeretru Pasana Sangam
Paramathy Velur Taluk by its President
S.P.Subramaniam
3.Sri Easwara Rajavaikkal Siru Vivasaiyigal
Neeretru Pasana Sangam, Periya Cholipalayam
Thanneer Pandal, Paramathy Velur Taluk
by its President Karuppanna Gounder ... Petitioner
Vs.
1.Nanjay Edayar Vivasaiyigal Sangam
by its President N.M.Mayandi Gounder
Nanjay Edayar Village
Paramathy Velur Taluk
Namakkal District
2.Vengarai Rasaiyan Siru Vivasaiyigal
Neeretru Pasana Sangam
Pilikkalpalayam by its President
Paramathy Velur Taluk
3.Pudu Vengarai Amman Siru Vivasaiyigal
Neeretru Pasana Sangam
Pilikkalpalayam by its President
Paramathy Velur Taluk
4.Meenakshi Amman Siru Vivasaiyigal Pasana Sangam
Vadakarai Athur
by its President, Paramathy Velur Taluk
5.Vangalamman Siru Vivasaiyigal
Neeretru Pasana Sangam
Aanangur
By its President, Paramathy Velur Taluk
6.Anai Karuppanar & Kandiyamman
Siru Vivasaiyigal Neeretru Pasana Sangam
by its President, Koppanampalayam
Pandamangalam
Paramathy Velur Taluk
7.Rajaganapathy Siru Vivasaiyigal Neeretru Pasana Sangam
by its President, Koppanampalayam, Velur Main Road
Pandamangalam, Paramathy Velur Taluk
8.The District Collector
Namakkal, Namakkal District
9. The Tahsildar
Paramathy Velur Taluk
(President of Irrigation supervision group)
10.The Executive Engineer
Public Works Department
River Conservancy Division, Trichy
11.The Chairman
Tamil Nadu Electricity Board
Anna Salai, Chennai
12. The Assistant Executive Engineer
Tamilnadu Electricity Board
Paramathy Velur Division
Paramathy Velur Taluk
13. The Executive Engineer
Tamil Nadu Electricity Board
Paramathy Velur Division
Paramathy Velur Taluk ... Respondents
Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against fair and decretal order of the District Munsif-cum-Judicial Magistrate Court, Paramathy dated 15.07.2015 in I.A.No.228 of 2005 in O.S.No.3 of 2002.
For Petitioner : Mr.P.Valliappan
For Respondents : Mr.S.Saravana Kumar
for M/s.Akbar Md.Abdulla for R1
Mr.V.Viswanathan for R11 and R13
Mr.T.Jayaramraj
Government Advocate (CS) for R8
No Appearance for R2 to R7,9,10 & 12
ORDER
Challenge is made in this memorandum of civil revision to the fair and decretal order dated 15.07.2015 and made in the application in I.A.No.228 of 2005 in the suit in O.S.No.203 of 2002 on the file of the learned District Munsif-cum-Judicial Magistrate, Paramathy.
2. The revision petitioners herein are the defendants 7, 8 and 9 in the suit in O.S.No.3 of 2002 whereas the first respondent is the plaintiff in the suit and the respondents 2 to 13 are the defendants 1 to 6 and 10 to 15. The first respondent/plaintiff is the Nanjay Edayar Vivasaiyigal Sangam represented by its President N.M.Mayandi Gounder, Nanjay Edayar Village, Paramathy Velur Taluk, Namakkal District. He seems to have filed the above suit as against the revision petitioners as well as the respondents 2 to 13 herein seeking the following reliefs:
1.to grant a mandatory injunction directing the defendants 10 to 12 to close the channel formed by them from Rajavaikkal for the purpose of taking water to their respective lands;
2.to grant a mandatory injunction as against the defendants 10 to 12 directing them to remove the pipelines laid by defendants 1 to 9 in the bank of Rajavaikal;
3.To grant a permanent injunction as against the defendants 1 to 9 restraining them from taking water from Rajavaikal scheme against the rights of the plaintiffs;
4.To grant an injunction against the defendants 13 to 15 not to provide electricity service connection to the defendants 1 to 9 so as to enable them to take water to the suit scheme well from Rajavaikal.
3. The suit was contested by defendants 2 to 4, 7 to 9 (revision petitioners herein) and 11th and 15th defendants. During the pendency of the suit, the first respondent/plaintiff had filed an application in I.A.No.228 of 2005 under Order XXVI Rule 9 of the Code of Civil Procedure to appoint an Advocate Commissioner to note down the following particulars and also to file a detailed report along with a plan:
1.To take note of the existing scheme and their respective distance formed by the defendants 1 to 9 in Rajavaikal, which branches from jedarpalayam dam put up in Kaveri river.
2.To note down the electricity service connection provided to their respective schemes and the electricity motor fitted with their respective wells and also to note down the particulars with regard to the availability of the water pipelines and other factors which may be directed to be noted by the Commissioner.
4. This petition was resisted by the respondents by filing their counter statement which was adopted by the other respondents. After hearing both sides, the learned District Munsif-cum-Judicial Magistrate, Paramathi, had proceeded to allow the petition on 15.07.2005 and thereby a Commissioner was appointed as prayed for by the first respondent/plaintiff. The Commissioner was also directed to file his report on or before 24.08.2005. Having been aggrieved by the above said order, the respondents 7 to 9 have approached this Court with this revision.
5. Heard Mr.P.Valliappan, learned counsel appearing for the revision petitioners and Mr.S.Saravana Kumar, learned counsel appearing for the first respondent/plaintiff.
6. Mr.P.Valliappan, learned counsel for the revision petitioner has argued mainly on the following grounds:
1.It is adverted to by the learned counsel that the prayer for the appointment of Advocate Commissioner was sought for in respect of the properties which were not covered by the plaint schedule;
2.The appointment of the Commissioner by the Trial Court was not the scope of the application.
3.It is well settled law that an Advocate Could not be appointed for the purpose of collecting evidence.
4.Mr.P.Valliappan, has also contended that the first respondent/plaintiff had sought the relief of appointment of an Advocate Commissioner for the purpose of collecting evidence which was impermissible in law;
5.The issue raised in the application filed by the first respondent/plaintiff seeking the appointment of Advocate Commissioner was not related to the averments of the plaint and on account of this reason, Mr.Valliappan has urged this Court to set aside the impugned order. In support of his contention, learned counsel for the petitioner has placed reliance upon the following decisions:
1.Elango Vs. Kasthuri (2009 (5) CTC 706);
2.Thangaraj vs. Pappathi (2014 (2) CTC 68);
3.Chinnathambi and others (2006 (5) CTC 494);
4.Order of this Court dated 06.01.2015 and made in Varadharajan and another Vs. S.Paramasivam;
5.Order of this Court dated 13.07.2015 and made in Muthamil Selvam and another vs. Alagappan Udayar; and
6.Order of this Court dated 05.07.2012 and made in Venkatachalapathi @ Boopathi vs. P.J.Venkataraman.
8. Excepting the decision cited second supra, all other decisions have categorically spelt out the same version saying that the Court may appoint an Advocate Commissioner in any suit when it deems that a local investigation is requisite for the purpose of elucidating any matter in dispute, but an Advocate Commissioner cannot be appointed to note down factum of possession under the pretext of noting down physical features. Court alone can gather evidence regarding factum of possession and it cannot be entrusted to the Advocate Commissioner.
9. On the other hand, Mr.R.Subramanian, learned counsel appearing for the first respondent/plaintiff has submitted that the suit itself was filed by the first respondent/plaintiff seeking the relief of mandatory injunction as against the respondents directing them to remove the pipelines which were laid down by them for the purpose of taking water from Rajavaikkal to irrigate their respective lands. He has also argued that if they were allowed to take water from Rajavaikkal by using the electric motors with heavy horsepower, then the properties of the first respondent/plaintiff Sangam, which is having lands at the tail end of Rajavaikkal, would not be in a position to irrigate their respective lands, because adequate or sufficient water would not be available for them to irrigate their lands and only for this purpose, the suit was filed and as argued by Mr.Valliappan, the scope of application filed by the first respondent/plaintiff under Order XXVI Rule 9 was not against the averments of the plaint and on the other hand, it was filed only for the purpose of helping the Court to take fair decision.
10. The learned counsel has also argued that the sole purpose for filing the application for appointment of Advocate Commissioner was not for collecting the evidences as argued by Mr.P.Valliappan and on the other hand, it was to be elucidated to the Court that such facts which were to be noted by the Advocate Commissioner could not be placed before the Court at the time of trial. Only they could be collected at the spot only and for this purpose an Advocate Commissioner was very much necessary and essential and accordingly the learned trial Judge had passed the order appointing the Advocate Commissioner, which did not require any interference of this Court.
11. It is significant to note here that during the pendency of the revision petition, the first respondent/plaintiff was directed to file a memorandum with reference to the scope of application for appointing the Advocate Commissioner. In this connection, the first respondent had filed a memorandum enumerating the scope of Commissioner application which are extracted as under:
1.To find out the manner in which the water from Raja Vaikkal is being pumped out or taken to the wells under various lift irrigation schemes which do form part of the original Ayakattu of Raja Vaikkal.
2.To find out how many electric pump-sets have been installed by the lift irrigation scheme.
3.To find out what is the horse power capacity of the electric motors.
4.To find out whether the capacity of the electric motors are within the approved limit.
12. For the memorandum filed by the first respondent/plaintiff, the revision petitioners have filed their objection wherein they have stated as under:
1.The petitioners stoutly oppose the recitals contained in the memo dated 19.08.2016, as the respondents have sought to enlarge the scope of the suit and attempted to collect evidence through an advocate Commissioner.
2.As far as clause (1) of the memo is concerned, the same is untenable and beyond the scope of the prayer sought in the application seeking appointment of advocate commissioner. Hence the same cannot be granted.
3.It is submitted that the relief sought in Clause (2) of the Memo is also unsustainable in law, as the respondents have sought a new relief.
4.Insofar as clause (3) of the memo is concerned, these petitioners object the same and leave it for the consideration of this Court.
5.The question whether the capacity of the electic motors is within the approved capacity, as stated in clause (4) of the Memo, is an issue to be considered by the Court and the same cannot be delegated to the Advocate Commissioner.
6.The respondents have filed the memo contrary to the directions of this Hon'ble Court and hence the same cannot be accepted.
13. It is also significant to note here that as aforestated in Clause 3 of the memorandum, the first respondent/plaintiff has requested the Court to find out as to what is the horsepower capacity of the electric motor. Insofar as this clause is concerned, the revision petitioners have no objection. In this connection this Court is taking the risk of reiteration by extracting clause 4 of their memorandum of objection:
4. Insofar as clause (3) of the memo is concerned, these petitioners object the same and leave it for the consideration of this Hon'ble Court. It shows that the revision petitioners have got no objection to find out what is the horsepower capacity of the electric power motors.
14. This Court has carefully perused the averments of the affidavit filed in support of the application in I.A.No.228 of 2005 along with the impugned order. At the first instance, this Court would like to place it on record that the prayer, which is sought for in the application, is not beyond the scope of the suit. Further, this Court also finds that the appointment of Advocate Commissioner is of course necessary to take a fare decision by the trial Court.
15. It is obvious to note down here that the present case is unique in its nature. It cannot be equated with the other cases cited above. Insofar as the present case is concerned, this Court would like to place it on record that the provisions of Order XXVI Rule 9 CPC envisages that 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, 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. The intention of the legislators is that, an Advocate Commissioner can be appointed only for the purpose of elucidating any matter in dispute by way of helping the Court which deems a local investigation is absolutely necessary and proper.
16. As observed by this Court in the forgoing paragraphs, the details, such as, regarding laying of pipelines by the revision petitioners and the other respondents 2 to 13 in the bank of Rajavaikal which branches from Kaveri River jedarpalayam dam, the service connection provided to the electric motor pumps to suck the water from the Rajavaikal, the distance at which such wells are located and the motor pumps are placed, cannot be directly taken to the Courts for its decision. It could be taken or gathered only through the Advocate along with an expert in the irrigation. To highlight this point, this Court would like to make reference to the decision of this Court in Ponnusamy Pandaram V. Salem Vaiyappamalai Jangamar Sangam reported in AIR 1986 Madras 33 wherein at paragraph 6, Hon'ble Justice Nainar Sundaram has observed as under:
6. The object of local investigation under 0. XXVI, R. 9 of the Code cannot belittled. Its object is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in court but could be taken only from its peculiar nature, on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. .......
17. The purpose of filing the application by the first respondent/plaintiff under Order XXVI Rule 9 CPC cannot therefore be belittled or underestimated. The evidences available at the bank of Rajavaikkal could be concluded at the instance of party who relies upon the same and this cannot be taken in Court, but it could be taken only from its peculiar nature, on the spot. Therefore, the order of the trial Court appointing Advocate Commissioner cannot be said to be as an illegal one which according to this Court is well within the bounds of law which does not require any interference.
In the result, the Civil Revision Petition is dismissed. The Commissioner, who has been appointed by the trial Court under the impugned order, is directed to file his report (if not filed earlier) within a period of eight weeks from the date of receipt of a copy of this order. After receiving the report from the Advocate Commissioner, the trial Court is directed to dispose of the suit in O.S.No.3 of 2002 within a period of four months from the date of receipt of the commissioner's report as well as the objection from the respondents without loss of further time. No costs. Consequently, the connected miscellaneous petition is closed.
25.10.2016 Index: Yes/No Internet: Yes T.MATHIVANAN.J., gpa C.R.P (PD) No.1751 of 2005 & CMP.19708 of 2005 25.10.2016