Madras High Court
M.A.Y.Peer Mohamed Abba vs S.Sahul Hameed on 18 August, 2011
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/08/2011 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.R.P(NPD)(MD)No.1036 of 2011 and M.P(MD)No.1 of 2011 1.M.A.Y.Peer Mohamed Abba 2.M.N.Mohidden Pillai ..Petitioners Vs 1.S.Sahul Hameed 2.S.Syed Mohamed Buhari 3.S.Mohameed Abubaker ..Respondents PRAYER Civil Revision Petition filed under Article 227 of Constitution of India to set aside the fair and decretal order dated 15.03.2011 passed in I.A.No.188 of 2010 in A.S.No.79 of 2010 on the file of the Principal Subordinate Judge, Tirunelveli. !For Petitioners ... Mr.S.Balasubramanian ^For Respondent ... Mr.V.Meenakshisundaram for Mr.M.Vallinayagam :ORDER
The revision petitioners/appellants have filed the above revision to set aside the fair and decretal order dated 15.03.2011 passed in I.A.No.188 of 2010 in A.S.No.79 of 2010 on the file of the Principal Subordinate Judge, Tirunelveli.
2.The short facts of the case are as follows:-
The respondents/plaintiff have filed a suit in O.S.No.864 of 2004 against the revision petitioners/defendants to restrain him from disturbing them with their peaceful possession. The said case was resisted by the revision petitioners/defendants herein. After adjudication, the suit was decreed in favour of the plaintiffs. Aggrieved by the said decree and judgment, the appellant has filed the appeal suit in A.S.No.79 of 2010 and challenged the decree and judgment passed by the trial Court. While the appeal suit was pending, the revision petitioners filed an interlocutory application in I.A.No.188 of 2010 in A.S.No.79 of 2010 for appointment of an advocate commissioner to find out the location of the plaintiffs' and defendants' property with the help of a land surveyor. The said application was opposed by the respondents/plaintiffs by way of a counter statement. The learned appellate Judge, after hearing the arguments of the learned counsels and on perusing the averments of the parties, dismissed the application. Aggrieved by the said dismissal order, the revision petitioners/defendants have filed the above revision to set aside the order and decretal order.
3.The learned counsel for the revision petitioners argued that the defendants are occupying and enjoying an extent of land measuring 7 feet x 32 . feet. The plaintiffs are occupying and enjoying an extent of land measuring 7 feet x 35 . feet in survey No.1806/1.A. The decree passed by the learned trial Judge does not clearly indicate the particulars of the land involved in the said suit, and further the issued regarding the property location has also not been framed properly. Therefore, an advocate commissioner is necessary to locate the property with the help of a land surveyor for avoiding unnecessary complications in the said case.
4.The learned counsel for the respondents/plaintiffs argued no issue was framed regarding property location but the learned trial court Judge has discussed in his judgment, in paragraph 11, regarding property description. As such, there is no complication in this case. Therefore, the appointment of an advocate commissioner is not required at this stage.
5.In support of his arguments, the learned counsel cited a judgment in the case of Principal, St.Patrick School and College v. Amaravathi reported in (2010)1 MLJ 1381. The relevant portion of the said Judgment reads as follows:-
"Code of Civil Procedure (5 of 1908), Order 26 Rule 9 - Appointment of Advocate Commissioner - Application filed by plaintiffs for appointment of Advocate Commissioner along with Government Surveyor to measure suit land - Same allowed by First Appellate Court - Revision - On facts and circumstances of present case, Commissioner cannot be appointed to procure or gather evidence by filling up lacuna at appellate stage - Further, it is not case of First Appellate Court that there is insufficient or doubtful evidence available on record - Commissioner cannot be permitted to perform functions of a Court of law
- It is for Court to act based on available oral and documentary evidence on record - Order passed by First Appellate Court set aside - Revision petition allowed."
"26.Be that as it may, in view of the divergent stand taken by the parties and also bearing in mind of another fact admittedly A.S.No.244 of 2007 is pending on the file of First Appellate Court, without expressing any opinion on the merits of the case, this Court is of the considered view that I.A.No.855 of 2007 has been disposed of on 07.08.2009 even though it has been filed in the year 2007, when the appeal itself is ripe for hearing of the final arguments of the respective sides and it is for the Court of law to act based on the available oral and documentary evidence on record in a given case and as a matter of fact, on the basis of the facts and circumstances of the present case, the Commissioner cannot be permitted to perform the functions of a Court of law and as such, the Commissioner cannot be appointed to procure or gather evidence by filing up the lacuna at the appellate stage (when it is not the case of the First Appellate Court that there is insufficient or doubtful evidence available on record) and in that view of the matter, the order passed by the First Appellate Court in I.A.No.855 of 2007 is not correct in the eye of law and resultantly, the civil revision petition is allowed."
6.Further, the learned counsel argued that the decree and judgment of the learned trial judge is a well considered one. The revision petitioner is attempting to fill up the lacuna by seeking appointment of an advocate commissioner.
7.Per contra, the learned counsel for the revision petitioners argued that even though there was discussion before the trial court regarding the properties of both parties, there was no specific findings regarding location of the property in the said judgment. For locating the property, a separate issue has to be framed. That has not been done by the learned trial Judge. The purpose of appointment of an advocate commissioner is only for location of the plaintiffs' property and defendants' property, with the help of a land surveyor. As such, the revision petitioners have no intention to fill up the lacuna as alleged by the plaintiffs'.
8.The appointment of an advocate commissioner is only for the purpose of getting more clarity on the properties of the parties and to find out whether the properties are one and the same whether they are differently located.
9.In support of his arguments, the learned counsel for the petitioner cited a judgment in the case of Chockalingam vs. Pichai reported in (2003)2 M.L.J. 399. The relevant portion of the said Judgment reads as follows:-
"Civil Procedure Code (V of 1908), O.26, Rule 9 and 0.41, Rule 47 - Suit for permanent injunction - Appointment of Commissioner sought for at the appellate stage - Application allowed on the ground that the dispute related to the very identity of the suit property - Order challenged in revision - No hard and fast rule can be laid down in cases of application for appointment of Commissioner - Application should not be ordered for the asking - Power should be exercised judicially."
"17.An analysis of the above judgments would lead to an irresistible conclusion that the appellate Court, while considering the application for appointment of Commissioner, should not order the application for the sake of asking. Since the power could be exercised judicially, the proper application of mind to the facts of the case is essential before either ordering or rejecting such application. No hard and fast rule can be laid down that in all cases of application filed for appointment of Commissioner, that it should be only heard along with the appeal and the Court should be only heard along with the appeal and the Court should order the appointment of Commissioner only in the event it satisfies for such commission during the hearing of the appeal. While the question of identity of the property is pleaded, it would be only proper for the court to first collect the materials as to the identity of the property by way of a report from the commissioner to adjudicate the dispute at the time of hearing of the appeal."
10.In the facts and circumstances of the case and after hearing the arguments advanced by the learned counsels on either side and on perusing the order and decretal order passed in the interlocutory application, this court is of the considered opinion that if an advocate commissioner is appointed to locate the properties of the plaintiffs and defendants, with the help of a land surveyor, no one will be prejudiced, since the advocate commissioner's function in this case is only to define the location of the property of the parties concerned. Therefore, the fair order and decretal order passed in I.A.No.188 of 2010 in A.S.No.79 of 2010 dated 15.03.2011 on the file of Principal Subordinate Judge, Tirunelveli is set aside. Consequently, the application in I.A.No.188 of 2010 for appointment of advocate commissioner is allowed.
11.In the result, the above civil revision petition is allowed. Consequently, the order and decretal order passed in I.A.NO.188 of 2010 in A.S.NO.79 of 2010 dated 15.03.2011 on the file of Principal Subordinate Judge, Tirunelveli is set aside. Connected miscellaneous petition is closed. There is no order as to costs.
skn To The Principal Subordinate Judge, Tirunelveli.