Madras High Court
Manikandan vs Nadan Alias Gnanamuthu on 27 January, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/01/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P(NPD)(MD)No.1280 of 2004 Manikandan ...Petitioner vs 1.Nadan alias Gnanamuthu 2.Kumaravel 3.Chinnayyan 4.Kumaraswamy 5.Kesavan 6.Selvadhas 7.Thankamoni 8.Ponnumoni 9.Chellayyan 10.Sarojini 11.Girija 12.Sunija 13.Chellabai 14.Suseela(Minor) 15.Anathan(Minor) 16.Rajam(Minor) 17.Bai 18.Suthikumari 19.Paulthankam 20.Sathianesan 21.Rajamma 22.Ayyappa Prabhu 23.Chandra Prabhu 24.Rajmohan 25.Santhi 26.Kannan 27.Surendran 28.Vanaja Kumari ..Respondents/Respondents/ ..Defendants PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the order passed in I.A.No.145 of 2004 in A.S.No.30 of 1999 dated 15.04.2004 on the file of the Subordinate Judge at Kuzhithurai. !For Petitioner ... Mr.C.Rajkumar ^For Respondents... Mr.K.N.Thambi Mr.R.Selvaraj for R27& 28 R1 to R26 Given up :ORDER
The Revision petitioner/Petitioner/Appellant has projected the present Civil Revision Petition as against the order dated 15.04.2004 in I.A.No.145 of 2004 in A.S.No.30 of 1999 passed by the learned Sub-Judge, Kuzhithurai.
2.The First Appellate Court/learned Sub-Judge, Kuzhithurai while passing orders in I.A.No.145 of 2004 (filed by the Revision Petitioner/Petitioner/Plaintiff under Order 26 Rule 9 and Section 151 of Civil Procedure Code praying for appointment of an Advocate Commissioner) has among other things in paragraph '5' of the order has observed that 'this Petitioner/Appellant filed impleading petition and after notice to the proposed parties and the petition I.A.No.52 of 2004 was allowed and the parties impleaded after carry out amendment and A.P.C being filed, again this petitioner has filed this petition. The above circumstances would clearly shows that the petitioner is not in the intention of prosecuting the appeal. He files petition after petition and after the lapse of more than four years after filing of the appeal and after being posted in the list this petitioner comes forward with this petition stating the respondents are tying to alter the physical features of the property. The above contention cannot be acceptable. If really he is invigilant, he can prosecute the appeal and the appeal can be disposed of and consequently, dismissed the petition as not maintainable with costs.
3.The learned Counsel for the Revision Petitioner/Petitioner/Plaintiff submits that the impugned order of the First Appellate Authority namely Sub- Judge, Kuzhithurai in I.A.No.145 of 2004 in A.S.No.30 of 1999 dated 15.04.2004 in dismissing the application praying for appointment of an Advocate Commissioner is not sustainable either in law or in facts and further the First Appellate Court has not appreciated that the boundaries of the suit property can be demarcated only with the help of Commissioner by taking aid of Ex.A2 Kanapattam deed along with plan dated 28.02.1953 and also Ex.A12 the Plan.
4.The principal contention advanced on behalf of the Revision Petitioner/Plaintiff is that the Respondents are taking advantage of the dismissal of the suit and endeavouring to alter the physical features to demolish the western boundary and indeed, there is no bar for appointment of an Advocate Commissioner's application to be projected by the Petitioner/Plaintiff at any point of time in law and that too, in the interest of justice. But, unfortunately, this aspect of the matter has been lost sight of by the First Appellate Authority namely the learned Sub-Judge, Kuzhithurai, which is resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in the interest of justice.
5.Per contra, it is the contention of the learned Counsel for the Respondents 27 and 28 that the Respondents 27 and 28 are not the parties to the suit proceedings and they been added as parties only in part Proceedings. Further, it is the contention of the learned Counsel for the Respondents 27 and 28 that the Revision Petitioner/Plaintiff in Plaint paragraph No.3 has clearly stated "that the Plaint schedule property having separate old survey plan and can be easily traceable." and when that being the case, there is no need for the Revision Petitioner/Petitioner/Plaintiff to project an application namely I.A.No.145 of 2004 in A.S.No.30 of 1999 for appointment of an Advocate Commissioner as per Order 26 Rule 9 of Civil Procedure Code and that too, when the appeal comes up for hearing after the lapse of nearly five years.
6.Continuing further, it is the contention of the learned Counsel for the Respondents 27 and 28 that the Civil Revision Petitioner/Plaintiff is in the habit of projecting one or the other application namely the Revision Petitioner after filing the I.A.No.52 of 2004(impleading application) has filed the I.A.No.145 of 2004 in A.S.No.30 of 1999 praying for appointment of an Advocate Commissioner only with a view to procrastinate the appeal Proceedings in A.S.No.30 of 1999 which ought not to be permitted and indeed, the First Appellate Court has rightly dismissed the I.A.No.145 of 2004 in A.S.No.30 of 1999 (praying for appointment of an Advocate Commissioner) and at this distance of time, this Court may not interfere with the said orders passed by the learned First Appellate Authority in I.A.No.145 of 2004 in A.S.No.30 of 1999 dated 15.04.2004, sitting in Revision.
7.This Court has heard the learned Counsel appearing for the Revision Petitioner/Petitioner/ Plaintiff and also learned Counsel for the Respondents 27 and 28 and noticed their contentions.
8.It is to be noted that the Revision Petitioner/Plaintiff in the plaint in O.S.No.407 of 1981 has sought the following relief:
A)That in be a decree in demarcation of the boundaries of the Plaint schedule property as per the old Survey plan produced along with the Kanapattam deed dated 28.02.1953.
B)His title and possession of the Plaint schedule property may be declared.
C)He may be given a decree for costs of the suit to be realized from the defendants.
9.A perusal of I.A.No.145 of 2004 in A.S.No.30 of 1999 filed by the Revision Petitioner/Appellant/ Petitioner/Plaintiff shows that the suit property is comprised in Old Survey No.151/1B of Vilavancode Village and during the resurvey settlement, this property is correlated in R.S.No.A9/10. Furthermore, the Respondents in A.S.No.30 of 1999 disputes the identity of the suit property and also that they are attempting to alter the physical features of the suit property taking advantage of the dismissal of the suit etc. The Revision Petitioner/Petitioner/Appellant has sworn to an affidavit in I.A.No.145 of 2004 before the First Appellate Authority on 26.03.2004. In the said I.A.No.145 of 2004, the Petitioner/Appellant/Plaintiff has requested the Commissioner to measure and identify the suit property and prepare a plan with reference to the plan appended to Ex.A2 'Kanapattom' dated 28.02.1953 and also with reference to Ex.A12 Plan and to state the physical features of the suit property with reference to the boundaries and also to prepare a list of trees in the suit property with their age and value.
10.In the counter filed by the Respondents 28 and 29, to I.A.No.145 of 2004(Respondents 27 and 28 in Civil Revision Petition), it is mentioned that by praying for an appointment of Advocate Commissioner in A.S.No.30 of 1999, the Petitioner/Appellant/Plaintiff desires to collect the evidence to succeed in the case and the suit has been dismissed holding that the Revision Petitioner/Plaintiff has no title or possession to the suit property and as such, the appointment of an Advocate Commissioner is not maintainable in law and prayed for dismissal of the I.A.No.145 of 2004.
11.It transpires that the Revision Petitioner/ Plaintiff/Appellant earlier filed I.A.No.52 of 2004 the impleading petition and the same has been allowed by the First Appellate Court/learned Sub-Judge, Kuzhithurai. When the A.S.No.30 of 1999 has come up for hearing after the lapse of five years, then the Revision Petitioner has projected the I.A.No.145 of 2004 praying for appointment of an Advocate Commissioner under Order 26 Rule 9 and read with Section 151 of Civil Procedure Code.
12. It is true that a Court of law has a discretionary power under Order 26 Rule 9 of the Code of Civil Procedure to allow the application praying for appointment of an Advocate Commissioner by a party. However, it is not open to a litigant/party to indulge in a roving enquiry or in a fishing expedition. In a civil suit, the Revision Petitioner/Plaintiff/Appellant is the 'dominus litus'. Of course, the Rule is not a absolute or universal one. Admittedly, O.S.No.407 of 1981 filed by the Revision Petitioner/Plaintiff praying for relief of declaration of title and possession demarcation and for other relieves has been dismissed by the trial court on 03.02.1998.
13. As against the judgment and decree of the trial Court in O.S.No.407 of 1981 dated 03.02.1998, the Revision Petitioner/Plaintiff has filed A.S.No.30 of 1999 on the file of the learned Sub-Judge, Kuzhithurai. A.S.No.30 of 1999 has been posted in the list on 06.04.2004 and at that time the Revision Petitioner/ Petitioner/Appellant/Plaintiff has filed the impleading I.A.No.52 of 2004 which has been allowed by the First Appellate Court and thereafter only, the Revision Petitioner has thought fit to file the I.A.No.52 of 2004 praying for an appointment of an Advocate Commissioner to measure and identify the suit property and to prepare a plan with reference to Ex.A2 'Kanapattom' dated 28.02.1953 and also with reference to Ex.A12 Plan and note down the physical features of the property of the boundaries.
14. It is to be pointed out that a report of an Advocate Commissioner cannot form sole basis of a judgment. Further, the object of Order 26 Rule 9 of Code of Civil Procedure Code is not to assist a litigant to collect the evidence where a party can procure evidence itself. Per se, a commissioner's report is not an evidence.
15. Be that as it may, as far as the present case is concerned, this Court is of the considered view that the Revision Petitioner/Plaintiff/Appellant is to establish his case and he has to succeed or fail on the basis of the pleadings projected by him in the plaint. There is no limitation in law for filing of an application praying for an appointment of Advocate Commissioner under Order 26 Rule 9 of Civil Procedure Code and such application can be filed even at the time of hearing of appeal and there is no embargo in this regard in law, as opined by this Court, but the power of appointment of an Advocate Commissioner by a Court of law even by the Appellate Court, for that matter, has to be exercised with great care, circumspection and caution and the application praying for an appointment of an Advocate Commissioner to identify the property or measure the suit property cannot be allowed as a matter of course or routine.
16.On going through the order of the learned First Appellate/Sub-Judge, Kuzhithurai in A.S.No.30 of 1999, this Court is of the considered view that I.A.No.145 of 2004 filed by the Revision Petitioner/Petitioner/Appellant/Plaintiff is not a bonafide one and the said application is nothing but a surplusage or supernumerary one and the same has been filed only to procrastinate or protracte the pending Proceedings in A.S.No.30 of 1999 and consequently, the said I.A.No.145 of 2004 is only a luxury one and not based on necessary facts and circumstances which float on the surface.
17.Viewed in the perspective, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed by the learned First Appellate Authority/Sub-Judge,Kuzhithurai in I.A.No.145 of 2004 in A.S.No.30 of 1999 dated 15.04.2004 is confirmed by this Court for the reasons assigned in the Revision. Since the appeal A.S is of the year 1999 and the suit filed by the plaintiff in O.S.No.407 is of the year 1981, this Court, on the basis of Fair play, Equity, Good conscience and even as a matter of prudence, directs the learned First Appellate Authority/Sub-Judge,Kuzhithurai, to dispose of A.S.No.30 of 1999 within a period of two months from the date of receipt of a copy of this order and to report the compliance to this Court without fail. The parties are directed to co-operate with the learned First Appellate Authority/Sub-Judge, Kuzhithurai and also to lend helping hand in regard to the disposal of A.S.No.30 of 1999 so as to bring to an end the disputes/controversies involved in the pending appeal Proceedings between the parties.
gsr To The Sub-Judge, Kuzhithurai .