Madras High Court
Pr. Chockalingam vs M. Pichai And V. Lakshmanan on 26 February, 2003
Equivalent citations: (2003)2MLJ399
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. This civil revision petition is directed against the order of the learned Subordinate Judge, Devakottai made in I.A. NO. 89 of 2002 in A.S. NO. 15 of 2002 dated 26.11.2002.
2. The said interlocutory application was filed by the respondents herein seeking for appointment of an advocate commissioner under Order XXVI Rule 9 read with Section 151 of the Civil Procedure Code to inspect the suit property and also the adjacent properties with the help of a municipal town surveyor and to find out as to whether the suit property is in Duraisinga Nagar Lay Out. The said application was allowed. The respondent in the said application has filed the present revision.
3. Few facts leading to the filing of the civil revision petition are as follows :
The petitioner filed O.S. NO. 79 of 1999 before the District Munsif, Karaikudi for a permanent injunction restraining the respondents from trespassing into the suit property. After contest, the suit was decreed in favour of the petitioner. Aggrieved by the said judgment and decree, the respondents preferred an appeal in A.S. NO. 15 of 2002 before the Subordinate Court, Devakottai. While the appeal was pending, the respondents filed I.A. No. 89 of 2002 for appointment of a commissioner. The learned Subordinate Judge considered the application on merits and allowed the same by directing the appointment of commissioner to report as prayed for by the respondents. The details of discussion made and the reasons adduced on merits by the Subordinate Judge for appointment of the commissioner are not elaborated, as the challenge to the order is only on a legal ground.
4. Mr. T.R. Rajaraman, learned counsel for the petitioner would contend that when an application for appointment of a commissioner is made, it is an application for an order to lead additional evidence and the same should be considered along with the appeal and only in the event of the appellate Court finds that such a report is necessary, it can order the application.
5. In support of the submission, the learned counsel for the appellant would rely on the following judgments :
"i. Natha Singh and Others Vs. The Financial Commissioner, Taxation, Pubjab and Others ;
ii. Rajagopala Vs. Ramachandra ;
iii. R. Muthukrishnan Vs. Natarajan (1986 TLNJ 97); and iv. N. Mustaq Sheriff Vs. Zamrud Begum and Others (1984 TLNJ 374)."
6. Mr. V.R. Shanmuganathan, learned counsel for the respondents, on the other hand, would submit that the identity of the property should be ascertained by the Courts before the matters are heard for final disposal and in such event, the Court must appoint the commissioner and obtain the report even before the appeal is heard. In support of the said submission, the learned counsel would rely upon the judgment of the Apex Court in the case of Shreepat Vs. Rajendra Prasad and Others (2000 VI Supreme 389).
7. Learned counsel for the respondents would also submit that the application for appointment of an advocate commissioner cannot be considered as an application filed under Order XLI Rule 27 of the Civil Procedure Code, as, admittedly, the application was filed under Order XXVI Rule 9 of the Civil Procedure Code. Hence, the reports of the advocate commissioner cannot be considered as an additional evidence, so as to enable the appellate Court to consider an application seeking for the appointment of advocate commissioner at the time of hearing of the appeal.
8. The question as to whether an application for appointment of a commissioner should be considered as an application under Order XLI Rule 27 of the Civil Procedure Code came up for consideration before this Court in the judgment (supra); Veeraswami, J (as he then was) held that the appointment of advocate commissioner is not authorised by Rule 27 of Order XLI of the Civil Procedure Code, as that relates to additional evidence and the language of Rule 27(1)(b) does not lend itself to a construction that the report of the commissioner to be appointed and submitted in the appellate stage is regarded as additional evidence for the purpose of that rule.
9. Order XLI Rule 27 of the Civil Procedure Code relates to production of additional evidence in the appellate Court. The said Rule reads as under :
"(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
10. A reading of the said rule would indicate that it relates to only letting in additional evidence. The report of the commissioner is amenable to objections, which may be filed by both the parties, if require so. Then again, the parties are entitled to advance their arguments questioning the report. The Court need not necessarily accept the report of the commissioner in toto. More over, calling for a report even before the appeal is heard is only to enable the Court to consider the same at the time of disposal of the appeal and therefore, the report by itself cannot be considered as an additional evidence and the application filed seeking an order of appointment of commissioner can be brought within the ambit of Order XLI Rule 27 of the Civil Procedure Code.
11. Order XXVI Rule 9 of the Civil Procedure Code reads thus:
"Commissions to make local investigations :
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, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, 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:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
From a reading of the above rule, it is clear that the Court, if it deems fit that a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, may issue commission. This rule is applicable to all fours to the appellate Court dealing with the appeal also. Hence, an application filed under Order XXVI Rule 9 of the Civil Procedure Code cannot be equated to the application filed under Order XLI Rule 27 of the Civil Procedure Code.
12. Even when an application is filed under Order XLI Rule 27 of the Civil Procedure Code, the Courts have not held that the application shall be disposed of along with the appeal only. The judgment of the Apex Court relied upon by the learned counsel for the petitioner (supra), while considering the application filed under Order XLI Rule 27 of the Civil Procedure Code, has also laid down the principles only in the following manner :
"So far as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate Court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41 Rule 27 of the Code of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate Court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced."
That judgment also relates to an application filed under Order XLI Rule 27 of the Civil Procedure Code. Even in the said judgment, the Apex Court held that the power to receive and admit the additional evidence cannot be exercised arbitrarily, as the same should be exercised in a judicial manner. The Apex Court did not lay down a proposition that the additional evidence should be considered only along with the appeal in all cases. It was only held that it is for the appellate Court to exercise its discretion to receive and admit the additional evidence only if the facts of the case so warrant.
13. In fact, when an application filed under Order XLI Rule 27 of the Civil Procedure Code seeking for letting in additional evidence came up for consideration, the Apex Court in the case of Premier Automobiles Ltd., Bombay Vs. Kabirunnisa , directed the lower Court to hear and dispose of the application filed under the said Rule at the first instance and thereafter only, to take up the final hearing of the appeal. Even when, in the application filed under Order XLI Rule 27 of the Civil Procedure Code, the Apex Court has laid down that such application could be disposed of even at the first instance before hearing with the appeal, I do not find any merit in the contention of the learned counsel for the petitioner that the application filed under Order XXVI Rule 9 of the Civil Procedure Code shall be heard only along with the appeal.
14. The judgment reported in 1984 TLNJ 374 (supra) relied upon by the learned counsel for the petitioner also does not lay down the proposition that an application for appointment of commissioner should be heard only along with the appeal. This Court, in the said judgment, has only cautioned that the legitimate occasion for the exercise of discretion in appointing a commissioner by the appellate Court is not as and when the party seeks for appointment of a commissioner. In this judgment, it is further held that the appointment of commissioner by the appellate Court cannot be ordered at the mere asking. Except the said finding, the judgment does not lay down a proposition of law that an application for appointment of a commissioner should be considered only along with the appeal when the same is heard finally.
15. Similarly, the judgment reported in 1986 TLNJ 97 (supra) relied upon by the learned counsel for the petitioner also does not lay down a proposition that an application filed under Order XXVI Rule 9 of the Civil Procedure Code for appointment of commissioner should be heard only along with the appeal. In that case, the Court was considering an application filed under Order XLI Rule 27(1)(b) of the Civil Procedure Code, which relates to additional evidence for production of documents or examination of witness to enable the Court to pronounce judgment. In that context only, this Court has held that such application could be considered along with the appeal. The said judgment is, therefore, not applicable to the facts of the present case.
16. On the other hand, useful reference could be made to the judgment of the Apex Court reported in 2000 VI Supreme 389 (supra) wherein their Lordships of the Supreme Court have held that when there was a serious dispute with regard to the area and boundaries of the land in question, the Court should have got the identity of the property established by issuing survey commission before the case is disposed of.
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 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.
18. In our case, the application is filed only under Order XXVI Rule 9 of the Civil Procedure Code and not under Order XLI Rule 27 of the Civil Procedure Code. It is the case of the respondents that the property in dispute is comprised in S. NO. 800 and it correlates to Block No. 7 in Duraisinga Lay Out. The claim of the revision petitioner is in respect of the property in Block NO. 8 and it situates at north of the block to the suit property. The application for survey commission is filed for identification of the property further on the ground that the suit property does not lie in Duraisinga Lay Out. In view of the averments, it would be only proper for the appellate Court to issue survey commission at the first instance and to get the report as to the identity of the property even before the appeal is heard, as there is no embargo for the appellate Court to consider an application filed under Order XXVI Rule 9 of the Civil Procedure Code only along with the appeal. In view of the above discussions, I am unable to agree with the submissions of the learned counsel for the petitioner that the impugned order is unsustainable, as the application filed by the respondents seeking for appointment of commissioner ought to have been disposed of only at the time of hearing of the appeal.
19. This Court is also informed by the learned counsel for the respondents that pursuant to the impugned order, the advocate commissioner inspected the property and has also submitted his report. In view of the above factual position, no useful purpose will be served in setting aside the order, as the impugned order has been given effect to by appointment of advocate commissioner, who has also submitted his report.
20. However, Mr. T.R. Rajaraman, learned counsel for the petitioner would contend that in view of the subsequent development, the appellate Court may be directed to hear the appeal and in case it is necessary to rely upon the evidence of the report of the advocate commissioner, it may do so and for the said purpose, appropriate directions may be given.
21. It is needless to mention that while hearing the appeal, the appellate Court is entitled to consider the submissions of both the learned counsel for the appellants and the respondent and only if it is necessary that the report of the advocate commissioner should be relied upon for the disposal of the appeal, the same can be taken into consideration.
22. With the above observations, the civil revision petition is dismissed. No costs. Consequently, the above CMP is also dismissed.