Madras High Court
Panjavarnam vs Visuvasam Jeyaseeli on 4 January, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/01/2013 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD)(MD)No.2192 of 2012 and M.P.(MD)No.1 of 2012 1.Panjavarnam 2.Sankar 3.Sarathkumar .. Petitioners Vs Visuvasam Jeyaseeli .. Respondent Petition filed under Article 227 of the Constitution of India against the fair and decreetal order in I.A.No.914 of 2011 in O.S.No.115 of 2008 on the file of the District Munsif Court, Paramakudi, dated 11.01.2012. !For petitioners... Mr.D.Senthil ^For respondent ... Mr.R.Sathish :ORDER
Heard both the sides. The epitome and the long and short of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus:
The respondent / plaintiff filed the suit seeking declaration and permanent injunction in respect of the suit property on the main ground that it is a vacant site. Whereas, the defendants filed the written statement contending that they have been in possession and enjoyment of the suit property by constructing a hut thereon.
2.Up went the proceedings and during the pendency of the suit, the I.A.No.914 of 2011 was filed by the defendants seeking appointment of Advocate Commissioner to visit the suit property and note down the physical features and file a report with sketch. The plaintiff resisted the same and ultimately the I.A. was dismissed as against which this revision has been filed on various grounds.
3.The learned counsel for the revision petitioners would highlight by pointing out that the Lower Court misunderstood the scope of seeking appointment of an Commissioner. The Court felt as though the defendants are trying to fish out evidence in order to buttress and fortify the defendants' stand.
4.However, the learned counsel for the respondent / plaintiff would justify the order of the Lower Court by pointing out that the intention of the defendants is to get appointed the Advocate Commissioner only for the purpose of culling out and fishing out evidence to support their false plea.
5.The point for consideration is as to whether there is any illegality or impropriety in the order passed by the Lower Court in observing that the defendants were trying to fish out evidence by seeking appointment of an Advocate Commissioner.
6.I would like to highlight and spotlight that on the one hand, the plaintiff would state that the suit property is a vacant site, but on the other hand, the defendants would contend that they have been in possession and enjoyment of the hut in the suit property. The learned counsel for the plaintiff at one point of time, went to the extent of averring that if at all there is any hut, that might be in some other survey number other than the suit property. Be that as it may, the Trial Court was totally wrong in observing in its order that the appointment of an Advocate Commissioner was sought to note down the superstructure in order to support their plea and thereby fish out evidence. In my considered opinion, such locating of the hut cannot be equated to the act of fishing out evidence, which is entirely different from noting down the physical features of the suit property with the help of an Advocate Commissioner. The Advocate Commissioner if appointed would be able to visit the suit property with the help of a surveyor, measure the same and locate it and also note down as to what are all in existence in the suit property. Noting down the physical features would not amount to culling out evidence in support of the defendants. In fact that would help the Court to render its judgment on an even keel. I recollect the maxim "A picture is worth a thousand words". With that in mind, I would like to set aside the order of the Lower Court and mandate the Lower Court to appoint an Advocate Commissioner with the mission to visit the suit property with the help of a surveyor and measure the same by referring to the survey map and the documents of both the sides, and note down the physical features. The Advocate Commissioner is not expected to gather any evidence other than what has been set out supra. The Lower Court shall do well to see that the entire matter is disposed of within a period of two months from the date of receipt of a copy of this order.
7.The Civil Revision Petition is disposed of accordingly. Consequently, the connected miscellaneous petition is closed. No costs.
KM To The District Munsif, Paramakudi.