Madras High Court
Ramasubbu vs Chinnasamy on 21 August, 2006
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/08/2006 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN CRP.PD.No.1011 Of 2005 1.Ramasubbu 2.Gurusamy 3.Govindasamy ... Petitioners Vs. 1.Chinnasamy 2.Rajeshwari 3.Krishnammal ... Respondents This petition filed under Article 227 of Constitution of India, against the order dated 22.09.2005, made in I.A.No.448 of 2005, in O.S.No.184 of 2003, on the file of the Additional District Munsif Court, Sankarankoil. !For Petitioners ... Mr.S.Ramesh ^For Respondents ... No appearance :ORDER
This civil revision petition has been preferred against the order dated 22.09.2005, made in I.A.No.448 of 2005, in O.S.No.184 of 2003, on the file of the Additional District Munsif Court, Sankarankoil.
2. It is seen that the suit was filed for declaration of title and recovery of possession and other consequential reliefs. While the suit was pending, an interlocutory application in I.A.No.1637/2003 was filed by the petitioners herein to appoint an Advocate Commissioner. The trial Court had allowed the petition and appointed an Advocate Commissioner to inspect the suit property and accordingly, the Advocate Commissioner inspected the suit property and filed his report and plan. Subsequently, the respondents/defendants filed an interlocutory application in I.A.No.585 of 2004 to re-issue the Commission- warrant and the Trial Court without scraping the earlier Advocate- Commissioner's report and plan, had appointed another Advocate Commissioner to inspect the property and accordingly, another Commissioner who was appointed subsequently, he had inspected the property and filed his report and plan. The revision petitioner herein aggrieved by the said order, has filed the interlocutory application in I.A.No.448/2005, under Order XXVI Rule 9 & 10 of the Code of Civil Procedure, to scrap the report and plan submitted by the second Advocate Commissioner stating that the same was done by the Court below without jurisdiction, but the trial Court rejected the claim of the petitioner herein. Therefore, the revision petitioners have come forward with this petition.
3. The learned counsel appearing for the revision petitioners contended that subsequent to the filing of the report and plan by the Advocate- Commissioner, who was Originally appointed, the respondents herein filed the application in I.A.No.585/2004 only to reissue the Commissioner-warrant, for which counter was not filed by the revision petitioners/plaintiffs, but that cannot be a reason for the trial Court to appoint a second commissioner to inspect the property. Since as per Section XXVI Rule 10(3) of the Code of Civil Procedure, if the Court, for any reason is dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. According to the learned counsel for the revision petitioners, the trial Court was not empowered to appoint another Advocate-Commissioner, without scraping the report filed by the previous Advocate Commissioner.
4. In support of his contention, the learned counsel for the petitioners herein cited the following decisions;
In Kitnammal Vs. Nallaselvan and others, reported in [2005(1) CTC 356], this Court has held as follows;
"10. As rightly argued for the plaintiffs, the very appointment of the second advocate-commissioner without setting aside the report and plan of the first advocate-commissioner itself is not proper and therefore, the report and rough plan of the second advocate-commissioner cannot form part of the records unless the report and rough plan of the first advocate-commissioner are eschewed.
11. The very appointment of second advocate-commissioner is irregular and illegal and therefore, the report and rough plan of the second advocate- commissioner is to be set aside. The trial Court rightly refused to scrap the report and rough plan of the first advocate-commissioner, in view of the fact, no petition was filed to set aside the same before appointment of the second advocate-commissioner or even thereafter and before inspection of the suit properties by the second advocate-commissioner. It is open to both parties to file appropriate petitions for reissue of the warrant to the first advocate- commissioner, if not satisfied with the report and rough plan field by the first advocate- commissioner or for appointment of another advocate-commissioner, after setting aside the report and rough plan of the first advocate- commissioner."
In K.Kandaswamy and another Vs. K.C.Ramaswami and others, reported in [1998(2) L.W. 440], this Court has held as follows;
"Merely because certain objections have been filed, it would not result in a second Commissioner being appointed, on that day itself. Learned counsel for the petitioner relies on the decision in Viswanathan Vs. Shanmugham and another, to show as to when exactly the report of a previous Commissioner could be scrapped. It is obligatory on the part of the Court to give convincing reasons as to why the previous report filed cannot be acted upon."
5. Therefore, as per order XXVI Rule 10 (3) of the code of Civil Procedure, if the Court is for any reason dissatisfied with the Commissioner's report and plan, the Court can scrap such report and plan and appoint another commissioner on the petition filed by the parties, but, it is obligatory on the part of the Court to give convincing reason as to why the previous report filed by the first commissioner cannot be acted upon.
6. In the case on hand, the report and plan filed by the earlier Advocate Commissioner was not scrapped by the Court below, but on the petition filed by the respondents/defendants, the Court below had ordered for appointment of a second advocate commissioner, though the prayer in the said interlocutory application was only to reissue the warrant to the first Commissioner. The reason for not reissuing the warrant to the same Advocate commissioner was that he had been practising in the Criminal Court, which is not sustainable in law.
In R.Sivasubramanian Vs. S.Balamurugan, reported in [2006 (2) CTC 54], this Court has held as follows;
"In the present case, merely because objections were filed by the respondent herein to the earlier report, the Trial Court cannot appoint a second Commissioner unless it renders a finding that the earlier commissioner's Report is unsatisfactory. No such finding of dissatisfaction has been made in the impugned order and hence it is liable to be set aside."
In Swami Premananda Bharathi Vs. Swami Yogananda Bharathi and another, reported in [AIR 1985 Kerala 83], the Division Bench of a Kerala High Court has held that the appointment of second Commissioner before superseding the commissioner's report and proceedings, is not a mere irregularity but also illegal, since the same is without jurisdiction. As per the decision reported in Kerala High Court, the commissioner's report does not operate as res judicata. Relying on this judgment, the learned counsel for the petitioner further contended that jurisdiction is vested with the court below to scrap the report and plan filed by the second commissioner, since the appointment itself is irregular which cannot be cured as the same was passed without jurisdiction by the Court below.
7. On a perusal it is seen from the impugned order, that the trial court has given a finding that the second commissioner had already filed his report and plan prior to the date of the filing of the interlocutory application, pertaining to the impugned order, is also not legally sustainable. Hence, according to the Court below, petitioners herein could seek the remedy only before the appellate forum and that the Court has no jurisdiction. It is argued that it was not clearly stated in order XXVI Rule 10 (3) of the code of Civil Procedure, that before appointing a second Advocate commissioner, the report of the previous commissioner should have been scraped. It is obligatory on the part of the Court to give convincing reasons as to why the previous report filed by the first commissioner cannot be acted upon.
8. In this case, it is clear from the impugned order that the earlier report filed by the Advocate Commissioner was not scraped or eschewed by the Court below and no reason has been assigned as to why report filed by the earlier commissioner, could not be acted upon by the Court below. But, without assigning any reason the Court below had simply appointed a second Advocate Commissioner, on the ground that the previous Advocate Commissioner had been practising before the Criminal Court and hence he could not be appointed again has no legal basis and hence the reason assigned by the Court below cannot be accepted. As it is mandatory under Order XXVI Rule 10 (3) of the Code of Civil Procedure, to give proper reason for appointing a second-commissioner and further as per the decision cited above, the report filed by the earlier commissioner could have been scraped or eschewed for appointing a second commissioner. But the mandatory provisions were not followed by the Court below.
9. Considering the facts and circumstances of the case and in the light of the decisions cited above, I am of the view that the impugned order passed by the Court below is not sustainable, but liable to be set aside.
10. In the result, the civil revision petition is allowed and the order passed by the Court below in I.A.NO.448 of 2005, in O.S.No.184/2003, is set aside. Consequently, connected C.M.P.No.7808 of 2005 is closed. No order as to costs.
gcg To:
The Additional District Munsif Court, Sankarankoil.