Madras High Court
R. Karmegam vs The State Of Tamil Nadu on 13 April, 2009
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/04/2009
CORAM
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Civil Revision Petition No.1597 of 2007
1. R. Karmegam
2. Minor Nallamani. ... Petitioners
(rep. by his brother,
the first petitioner).
Vs
1. The State of Tamil Nadu
rep. by its District Collector
Madurai District
Collectorate Buildings
Madurai 20.
2. The Commissioner
Madurai Municipal Corporation
Corporation Buildings
Alagarcoil Road
Thallakulam
Madurai.
3. The Assistant Commissioner
Madurai Municipal Corporation
West Division
Corporation Travellers Bungalow
Mahaboobpalayam
Madurai 16.
4. The Superintending Engineer
National Highways
19 Jawahar Street
Gandhi Nagar
Madurai 20.
5. The Divisional Engineer
National Highways
19 Jawahar Street
Gandhi Nagar
Madurai 20.
6. The Assistant Engineer
National Highways
Ram Nagar
By-pass Road
Madurai 20. ... Respondents
Petition filed under Article 227 of the Constitution of India against the
order passed by the Principal District Munsif Court, Madurai Town, Madurai in
I.A.No.963 of 2006 in O.S.No.549 of 2005 dated 13/7/2007.
!For petitioners ... Mr.P.Senthur Pandian
^For respondents ... Mr.Nallathambi, AGP
(CS)
for R.R.1, 4 to 6.
No appearance for R.3.
- - - - -
:ORDER
The revision petitioners/petitioners/plaintiffs have filed this Civil Revision Petition as against the order dated 13/7/2007 in I.A.No.963 of 2006 in O.S.No.549 of 2005 passed by the learned District Munsif, Madurai Town in dismissing the application filed under Order 26 Rule 9 of the Code of Civil Procedure, praying for an appointment of an Advocate Commissioner to inspect the suit property with the help of a land Surveyor and to note down the physical features, assessing the damages and to file a detailed report with a plan.
2. The trial Court while passing orders in I.A.No.963 of 2006 on 13/7/2007 has inter alia observed that the application praying for an appointment of an Advocate Commissioner has been filed after a lapse of two years from the date of filing of the suit and further sufficient reasons have not been mentioned in the application for appointment of an Advocate Commissioner and moreover the averments in I.A.No.963 of 2006 can be established by means of adducing oral and documentary evidence and consequently, dismissed the application without costs.
3. The learned counsel for the revision petitioners submit that the trial Court has not taken into account of the material fact that part of the suit relief praying for a relief of mandatory injunction in regard to the restoration of Karupannasamy Temple Building, Rakkayee Ammal Samadhi, well, motor room, electric motor pump set, oil motor, STD booth in the schedule property have been destroyed and damaged by the respondents and therefore, an appointment of an Advocate Commissioner to note down the aforesaid physical features is very much essential to prove the case of the revision petitioners/plaintiffs and moreover, the respondents have not not filed any objection by means of counter against the appointment of an Advocate Commissioner coupled with a fact that the revision petitioners have made out a case for an appointment of an Advocate Commissioner and if an Advocate Commissioner is appointed much of the oral evidence to be let in in a case will get reduced substantially and when the trial of the suit has not commenced, there is no delay in filing the application for appointment of Commissioner and in fact, the delay cannot be a ground for refusing to appoint an Advocate Commissioner and as a matter of fact, the trial Court has proceeded on the assumption that the revision petitioners have sought for an appointment of an Advocate Commissioner to prove their possession which in fact is not correct and therefore, prays for allowing the Civil Revision Petition in the interest of justice.
4. Contending contra, the learned Additional Government Pleader appearing for R.R.1, 4 to 6 submits that the trial Court has assigned cogent and convincing reasons in dismissing the application for appointment of an Advocate Commissioner and that the trial Court has observed that the application for appointment of an Advocate Commissioner has been filed belatedly after two years of filing of the suit and therefore, prays this Court that the order of the trial Court need not be interfered by this Court sitting in revision.
5. It is to be pointed out that the revision petitioners/plaintiffs in the affidavit in I.A.No.963 of 2006 have averred that they filed the main suit O.S.No.549 of 2005 on the file of the learned Principal District Munsif, Madurai Town, Madurai praying for the relief that the suit scheduled property belongs to them by means of an adverse possession and for a consequent permanent injunction restraining the defendants, their men and agents from in any way disturbing the peaceful possession and enjoyment of the plaintiffs over the scheduled property and for the relief of mandatory injunction directing the defendants to restore the Karuppannasamy Temple Building etc., and in order to reduce much of oral evidence an appointment of an Advocate Commissioner is necessary and he may be directed to inspect the suit scheduled property with the help of a Surveyor and to note down the damaged Karupannasamy Temple, Rakayee Ammal and Periya Karuppukone, Samadhis, trees, STD booth, well, pump set etc., and to submit his report with a plan describing the present status.
6. In the written statement filed by the fifth defendant before the trial Court, it is inter alia mentioned that on 27/1/1960, a Notification has been issued under Section 4 (1) of the Land Acquisition act and the said Notification pertains to the formation of bye-pass road, and in the said Notification, the entire extent of 60 cents is covered and the entire extent in Survey No.226/4 has been acquired and after acquisition has been sub-divided and in the said area, there has been an encroachment which has been effected as per law and hence, there is no scope for claiming any damages against this defendant.
7. Countering the submissions of the learned counsel for the revision petitioners, the learned Additional Government Pleader contends that the revision petitioners before filing the suit O.S.No.549 of 2005 on the file of the Principal District Munsif Court, Madurai Town, Madurai has filed W.P.No.4487 of 2004 claiming the very same relief sought in the suit and the same has been dismissed on 26/6/2007 and later W.A.No.469 of 2007 has been filed before this Court and the same has also been dismissed on 15/7/2008 and in fact, the revision petitioners have failed to establish the ownership over the suit property both in the writ petition and in writ appeal and in deed consequent to the direction issued by this Court in W.P.No.689 of 2005 dated 2/2/2005 all the encroachments in the National Highways and also in State Highways were effected by the Corporation of Madurai and one among the encroachment is the suit mentioned property encroached by the revision petitioners and in compliance of the order dated 2/2/2005 passed in W.P.No.689 of 2005, the encroachment in the suit mentioned property has been effected by the competent authority and if the prayer of the revision petitioners for an appointment of an Advocate Commissioner is entertained, then it will cause severe hardship and loss to the public.
8. It is the further stand of the revision petitioners that in W.A.(M.D.)No.463 of 2007, the Survey number is mentioned as S.No.226/4C in Madakulam Village, Madurai South Taluk, comprising an extent of 27 cents and the property aforesaid in W.A.(M.D.)No.463 of 2007 is different from the property mentioned in the plaint schedule of suit O.S.No.549 of 2005. At this stage, this Court aptly points out that in the plaint schedule in O.S.No.549 of 2005 on the file of the Principal District Munsif Court, Madurai Town, Madurai, the Survey No. mentioned is 226/4A in part of the patta No.940, an extent of 19 cents of land, with a demolished Karuppanasamy temple, Rakkayee Amman Temple/Samadhi, Periyakaruppa Konar Samadhi, Asbestos roofed dwelling house, well, electric motor pump set room, electric motor pumpset, oil motor pumpset, STD booth, Tamarind trees, neem trees, palmirah trees, coconut trees, vartha trees, Manjanathi trees and other trees in Madakulam Revenue Village, Madurai South Taluk, Madurai District.
9. It is a well settled principle of law that the object of Order 26 Rule 9 of the Code of Civil Procedure is not to assist a party in order to collect evidence in a given case. In fact, the aim of an appointment of an Advocate Commissioner is only to elucidate matters which are local in character and which can be done only by local investigation at the spot. No wonder, the Court has power to appoint an Advocate Commissioner at any stage of the suit where it deems a local investigation to be requisite for the purpose of elucidating any matter in issue. However, the power conferred on Court of law to appoint an Advocate Commissioner is a discretionary one. It is to be borne in mind that a decision on a material issue cannot be left to the Commissioner but must be determined by the Court. A Court or a Judge cannot delegate any of its/his judicial functions. At best, the report of the Commissioner is merely a piece of evidence and does not bind the Court but can be utilised for the purpose of appreciating the evidence on record. However, the said report is not binding on the Court, which is at liberty to arrive at its own conclusion.
10. Be that as it may, this Court pertinently points out that under Order 26 Rule 9 of the Code of Civil Procedure, a Court of law can appoint a Commissioner at any stage of the suit where it deems a local Institution/investigation to be requisite for the purpose of elucidating any matter in issue.
11. It is also brought to the notice of this Court that the main suit O.S.No.549 of 2005 on the file of the learned Principal District Munsif, Madurai Town, Madurai has been posted in the list during the month of April, 2009. Admittedly, the revision petitioners/plaintiffs have filed the present suit O.S.No.549 of 2005 in March 2005. But the revision petitioners herein have filed I.A.No.963 of 2006 praying for an appointment of an Advocate Commissioner only during October 2006. However, orders have been passed by the trial Court in I.A.No.963 of 2006 on 13/7/2007.
12. The aim of an appointment of Commissioner ought not to be to procure evidence which can be taken in Court. As a matter of fact, the power to appoint a Commissioner is discretionary one and is not to be interfered within the revision as per decision B.JAGANNATH Vs. NC.NARAYANAPPA (AIR 1982 KANT - 233).
13. As far as the present case is concerned, the revision petitioners/plaintiffs claim that the scheduled property belongs to them by way of adverse possession etc., and also they seek the relief of permanent and mandatory injunctions. The mandatory injunction relief prayed for by the revision petitioners is to the effect of directing the defendants to restore the Karuppanasamy Temple Building, Takkayee Ammal Samadhi, Rakkappa Kobar Samadhi, well, motor room, electric motor pumpset, oil motor, STD Booth, in the scheduled property. Suffice it for this Court to point out that the relief of mandatory injunction sought for in the plaint by the revision petitioners and the relief sought for in I.A.No.963 of 2006 praying for appointment of an Advocate Commissioner by the revision petitioners is one and the same in the considered opinion of this Court. In as much as the main suit O.S.No.549 of 2005 has been posted in the list by the trial Court during April 2009 and taking note of the fact that the trial Court has refused to exercise its discretionary power of appointing an Advocate Commissioner in I.A.No.963 of 2006, this Court opines that the order passed by the trial Court in I.A.No.963 of 2006 is not to be interfered with by this Court sitting in revision and further, this Court is of the considered view that the revision petitioners can work out their remedies in the main suit during the conduct of the trial of the case and in that view of the matter, the Civil Revision Petition fails and the same is hereby dismissed in furtherance of substantial cause of justice.
14. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.963 of 2006 dated 13/7/2007 is confirmed by this Court for the reasons assigned in this revision. Liberty is given to the revision petitioners/plaintiffs and the defendants to substantiate their case before the trial Court by means of letting in oral and documentary evidences in the manner known to law, so that the controversies/disputes can be thrashed out completely, comprehensively and once for all. Since the main suit has been posted in the list during April, 2009, the trial Court is directed to dispose of the main suit O.S.No.549 of 2005 on its file within a period of three months from the date of receipt of a copy of this order. The parties are directed to lend their cooperation to the trial Court in regard to the completion of the proceedings. The trial Court is directed to dispose of the main suit un-influenced with any of the observations made by this Court in this revision.
mvs.
To
1. The District Collector State of Tamil Nadu Madurai District
2. The Commissioner Madurai Municipal Corporation Corporation Buildings Alagarcoil Road, Thallakulam, Madurai.
3. The Assistant Commissioner Madurai Municipal Corporation West Division, Corporation Travellers Bungalow Mahaboobpalayam, Madurai 16.
4. The Superintending Engineer National Highways 19 Jawahar Street, Gandhi Nagar, Madurai 20.
5. The Divisional Engineer National Highways 19 Jawahar Street Gandhi Nagar, Madurai 20.
6. The Assistant Engineer National Highways Ram Nagar By-pass Road, Madurai 20.
7. The Principal District Munsif, Madurai
8. The Deputy Registrar (Judicial), Madurai Bench of Madras High Court, Madurai
- (To watch and report).