Madras High Court
Anwar Batcha vs S.Mahuedoom on 12 March, 2014
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.03.2014 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.R.P.(PD) (MD) No.324 of 2014 and M.P.(MD) No.1 of 2014 1.Anwar Batcha 2.Mehar Banu ... Petitioners -vs- S.Mahuedoom ... Respondent PRAYER Civil Revision Petition is filed under under Article 227 of the Constitution of India, against the fair and decreetal order dated 31.10.2013, passed in I.A.No.719 of 2013 in O.S.No.28 of 2011, on the file of the learned District Munsif, Sathankulam. !For Petitioners ... Mr.M.P.Senthil ^For Respondent ... Mr.R.Balakrishnan :ORDER
The fair and decreetal orders dated 31.10.2013 and made in I.A.No.719 of 2013 in O.S.No.28 of 2011, on the file of the learned District Munsif, Sathankulam, have been challenged in this memorandum of civil revision petition.
2. The revision petitioners herein are the defendants in the suit in O.S.No.28 of 2011, on the file of the learned District Munsif, Sathankulam, whereas the respondent herein is the plaintiff.
3. With reference to the facts of the case, it is to be stated that the respondent/plaintiff had filed a suit in O.S.No.28 of 2011 as against the revision petitioners, on the file of the learned District Munsif, Sathankulam, seeking the relief of permanent injunction restraining the revision petitioners/defendants, their men, agents and servants, from interfering with his peaceful possession and enjoyment of the schedule mentioned property and also for costs. The said suit was contested by the revision petitioners/defendants by filing their written statement and when the matter stood thus, the revision petitioners/defendants had taken out an interlocutory application in I.A.No.719 of 2013 in the said suit in O.S.No.28 of 2011, on the file of the learned District Munsif, Sathankulam, under the provisions of Order XXVI Rule 9 and Section 151 of the Code of Civil Procedure, seeking for appointment of Advocate Commissioner to note down the physical features of the suit property and also to file a report along with plan. As per the plaint schedule, the suit property has been described as under:
Housing site and house bearing Door No.61, comprised in Natham Survey No.574/3, situated at Thaikka Street, Ward No.6, at Sathankulam Town, Sathankulam Town Panchayat Board, within Palayamkottai Registration District, Sathankulam Sub- Registry, bounded with the following boundaries:
West to the north-south street, north to house site and house of Kishar and common boundary wall, east to A.E.Sulaiman Sahib's house site as well as the plaintiff's boundary wall, south to east-west mudukku street and ad-measures east-west 30.40 meters (96.69 feet), south to north 8.60 meters (28.19 feet), within this boundary, a house site measuring total extent of 261.44 sq.meters and the east facing tiled roofing house with mud wall bearing water connection No.92. Now, the new Ward Number is 10 and the new Door Number is 72.
4. In the affidavit filed in support of the interlocutory application in I.A.No.719 of 2013, the revision petitioners/defendants have contended that the house bearing Door No.72 in the suit site had already been fallen down at the ground level even six months prior to the filing of the suit. Now, the remnants alone are remaining there for evidencing that already there was a house in the suit site. Infact, at the time of filing of the suit, the house was not existence in the suit site.
5. Further, the revision petitioners/defendants have contended that they have been in possession of their house bearing Door No.60, New Door No.74, together with the suit site. They have also stated that their house bearing Door No.60, new Door No.74, has been lying proximity to the suit site and it is their specific contention that the suit site has not been in possession of the respondent/plaintiff.
6. Apart from this, the revision petitioners/defendants have also contended that the electricity connection had been drawn to the house site from the electricity service connection bearing No.SC B71, which is fixed in their house bearing Door No.60. In this connection, they would contend that these facts could not be proved by way of documentary evidence or oral evidence and therefore they have come forward with the above interlocutory application in I.A.No.719 of 2013 seeking for appointment of Advocate Commissioner to note down the physical features and to submit a report along with a plan. This application was vehementally contested by the respondent/plaintiff.
7. After hearing both sides, the learned Trial Judge had proceeded to dismiss the application, by order dated 31.10.2013, on the ground that since the suit was filed seeking the relief of permanent injunction, the parties to the suit shall have to establish their case through the documentary evidences alone. Impugning the said order dated 31.10.2013, the revision petitioners/defendants have approached this Court by way of filing this civil revision petition.
8. Heard the learned counsel appearing for the revision petitioners/defendants and the learned counsel appearing for the respondent/plaintiff and perused the materials available in the typed set of papers.
9. Rule 9 to Order XXVI of the Code of Civil Procedure envisages that 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.
10. From the texture of the languages coined in Rule 9 to Order XXVI C.P.C., it is explicit that it does not make any distinction between the plaintiff and the defendant or it does not have any reference to show that a particular party viz., either the plaintiff or the defendant alone shall file an application under Order 9 to Rule XXVI C.P.C., with a prayer to appoint an Advocate Commissioner. What it transpires is, where the Court deems a local investigation to be requisite or proper in any suit for the purpose of elucidating any matter, 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.
11. The expression 'elucidate' means to make lucid or clear, throw light upon, explain, enlighten. Where the Court is satisfied on the materials available on the record that a party is not able to produce the desired evidence for reasonable circumstances, it may assist the party to appoint a 'Commissioner' to get the evidence. However, such evidence is not binding on the Court, which is to appreciate the same along with other evidence. The party can 'countermand' the evidence of Commissioner's report by giving any other evidence. This dictum is laid down in Ankura & Ankura Charan Sahu v. Arjuna Charan Palei, reported in 1998 AIHC 1702 (Ori-DB). Besides this, in Debendranath Nandi v. Natha Bhuiyan, reported in AIR 1973 Ori 240, it is held that the object of local investigation under rule is to obtain evidence which from it's peculiar nature can best be had from the spot.
12. The object of Order XXVI Rule 9 C.P.C., is not to assist a party to collect evidence where it can get the evidence itself, but the real object is for elucidating any matter in dispute by local investigation at the spot.
13. In Payani Achuthan v. Chamballikundu Harijan Fisheries Development Co- operative Society, reported in AIR 1996 Ker 276, it has been held that the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under Order XXVI Rule 9 C.P.C., to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into the land of the plaintiff, one of the methods to find out as to whether or not there is encroachment is to have the local investigation done by a competent Commissioner. Thus, in such a case Trial Court was not right in rejecting the prayer for appointment of Commissioner.
14. On coming to the instant case on hand, the revision petitioners/defendants have claimed that they are in possession and enjoyment of the suit property along with the possession of their house and site, which is lying proximity to the disputed property and therefore according to them, the learned Trial Judge has erred in dismissing the application without considering the real issue involved in the suit.
15. In support of his contention, the learned counsel appearing for the revision petitioners/defendants has placed reliance upon the following decisions:
i. Karthikeyan vs. Kannan alias Rajendran, reported in 2008 (2) TLNJ 93 (Civil);
ii. Sivagurunathan v. Ramalingam, reported in (2005) 3 M.L.J. 525; and iii. A.Sulthan v. Mohammed Dasthagir, reported in (2008) 6 MLJ 359. All these decisions have been pronounced by this Court, which are very well supporting the case of the revision petitioners/defendants.
16. On the other hand, learned counsel appearing for the respondent/plaintiff has vehementally argued that the Order passed by the learned Trial Judge did not suffer with any infirmity and therefore the interference of this Court did not require. Further, he has submitted that it is settled principles of law that for procuring evidence Advocate Commissioner need not be appointed. This proposition will not be made applicable to the instant case on hand as the contention of the revision petitioners/defendants clearly demonstrates their object for elucidating the matter in dispute by local investigation of the Commissioner at the spot. Therefore, as contemplated under Rule 9 to Order XXVI C.P.C., this Court deems that a local investigation by the Advocate Commissioner is proper for the purpose of throwing more light or enlighten the Court to take a fair decision.
17. Keeping in view of the above facts, this Court is of the view that this revision petition is deserved to be allowed and the impugned fair and decreetal orders passed by the learned Trial Judge are liable to be set aside.
18. In the result, this civil revision petition is allowed and the fair and decreetal orders dated 31.10.2013 and made in I.A.No.719 of 2013 in O.S.No.28 of 2011, on the file of the learned District Munsif, Sathankulam, are set aside and the interlocutory application in I.A.No.719 of 2013 is allowed. The learned District Munsif, Sathankulam, is directed to appoint an Advocate Commissioner to make the local investigation and note down the physical features of the suit property and also to file a report along with a plan so as to assist the Court. Consequently, connected miscellaneous petition is closed. No costs.
krk To The District Munsif, District Munsif Court, Sathankulam.