← Library
Madras High CourtCRP(MD)/39/2016allowed

Rangasamy v. Umamalini,

2018-06-11Honourable Mr Justice M.V. Muralidaran5 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.06.2018

CORAM:

THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN C.R.P.(PD)(MD) No.39 of 2016 and C.M.P.(MD) No.174 of 2016

1. Rangasamy

2. Prabhu

3. Krishnamoorthi

4. Rajkumar

5. Karthick ... Petitioners/Petitioner 1,2,4 to 6/ Plaintiff 1,2,4 to 6 -vs1. Umamalini ... 1st Respondent/3rd Petitioner/ Palanisamy @ Palaniyappa Gounder (died) 3rd Plaintiff

2. Muthusamy

3. Ponnuchamy

4. Nataraj

5. Kannan

6. Kasiyappan

7. Thirunavukarasu

8. Chandran

9. Balasubramani 10.Appasu 11.Palanisamy 12.Kasilingam 13.Jothimani 14.Nandamma 15.Palaniyammal ... Respondents 2 to 15/ Respondents/Defendants Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to call for the records and set aside the fair and decreetal order dated 16.11.2015 in I.A.No.809 of 2015 in O.S.No.238 of 2010 on the file of the District Munsif Court, Ottanchathiram and allow this Civil Revision with Costs throughout.

For Petitioner : Mr.H.Lakshmi Shankar For R2 & R3 : Mr.G.Anbu Saravanan For R1 & R4to R15 : No Appearance

O R D E R

The Revision Petitioners are the plaintiffs 1, 2 and 4 to 6 in the suit in O.S.No.238 of 2010 on the file of the District Munsif

Court, Ottanchathiram and the suit was filed by the plaintiffs for declaration, injunction, etc. During the pendency of the suit, the plaintiffs filed an application in I.A.No.809 of 2015 for appointment of an Advocate Commissioner to inspect the suit property, which was dismissed by the Trial Court on 16.11.2015 on the ground that the application was filed only to collect evidence. Challenging the same, this revision petition has been filed.

2. It is the case of the revision petitioners / plaintiffs that they were cross examined by the defendants in respect of Ex.A1 stating that the said document is not genuine one, as the pathway was struck down in the document. Though the existence of pathway was clearly earmarked in the F.M.book, they were restrained by the defendants from using the pathway. The case was posted for examination of additional witnesses on the side of the plaintiffs and since the defendants started reiterating that there was no pathway, the plaintiffs, in order to reveal the exact position, filed an application before the Trial Court for appointment of Advocate Commissioner, which was dismissed by the Court for the reason stated supra.

3. The revision petitioners state that the Trial Court, without application of mind, has simply dismissed the application filed by the plaintiffs for appointment of Advocate Commissioner without looking into the factual aspects and therefore, it is prayed that the order of the Trial Court needs re-consideration by this Court and has to be set aside at the threshold.

4. The learned counsel for the defendants / respondents herein has contended that much prejudice will be caused to them in the event of appointment of an Advocate Commissioner, as the plaintiffs have been trying to collect evidence indirectly by way of appointment of Advocate Commissioner, which is impermissible under law and therefore, there is no point in appointing an Advocate Commissioner to inspect the said property. It is further contended that no explanation is forthcoming for the delay in approaching the Court for such appointment. Therefore, it is pleaded that the order of the Trial Court is sustainable and is valid in the eye of law, which does not require any interference by this Court.

5. Heard the learned counsel for the petitioners and the learned counsel for R2 to R15 and perused the material documents available on record. There is no representation on behalf of the 1st respondent.

6. Admittedly, the application filed by the plaintiff for appointment of an Advocate Commissioner was at the stage of conducting the proceedings in the suit and the nature of dispute could only be resolved, only if the exact location / status of the

suit property is ascertained, which cannot be done except by appointment of Advocate Commissioner. Moreover, noting down the physical features and other things would not amount to culling out the evidence and no prejudice will be caused to other side and such appointment of Advocate Commissioner will be helpful for the Trial Court to sort out the issue in letter and spirit. 7.While dealing with the similar issue in the case of Shanmugathai vs. Kamalammal and another reported in 2017 (2) MWN (Civil) 315 , I have myself passed an order, favouring appointment of Advocate Commissioner, by holding as under: "11.

Admittedly the present petition for appointment of an Advocate Commissioner was filed only at the stage of arguments, however the relief sought for in the suit is one for mandatory injunction and recovery of possession after declaration of the title. When the respective defendant deny the lie and location of disputed construction and specifically assert that the construction is within their property and there is no encroachment, the nature of dispute could be resolved only if the exact location of construction is brought to the knowledge of court, which cannot be done except by appointment of advocate Commissioner.

Thus mere delay in filing the application after the case was posted for arguments is not a ground for dismissal of application and substantial justice requires that the appointment of commissioner is very much necessary to decide the lis. 12.At this juncture, it is useful to refer the Judgment of this Hon'ble Court in the case of Panjavarnam and others VsVisuvasam Jeyaseeli (CRP(NPD)(MD)No.2192 of 2012) wherein it was held that 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 the evidence. Further this court enunciated the importance of the maxim that A Picture is worth a thousand words.

Further it was held by this Hon'ble Court in the said Judgment that it is mandate on the part of Lower court to appoint an advocate commissioner with a mission to visit the suit property with the help of surveyor and measure the same by referring to the survey map and documents of both sides and note down the physical features.

13.In yet another decision of this Court in the case of Vaithinattar and another v. Sakkubal Ammal reported in AIR 2004 Madras 419 it is held that in a suit for Declaration and Permanent Injunction, the dispute pertaining to portion of adjoining lands allegedly encroached by the defendants and the defendants denying that there was no such encroachment. This Hon'ble Court held that the best evidence in such case could be obtained only by the Appointment of advocate commissioner. Therefore in my considered

view, no prejudice will be caused to the respondent herein by appointing the advocate commissioner to visit the suit property along with the surveyor and note down the physical features. In fact, the advocate commissioners report and plan would enable the court for the purpose of throwing more light or enlighten to arrive at a fair decision. Thus the appointment of commissioner is necessary and therefore the order of court below is liable to be set-aside."

8. Considering the overall circumstances of the case, this Court is of the view that to give speedy quietus to the issue, appointment of an Advocate Commissioner is essential and therefore, the order of the Trial Court, in my considered opinion, is liable to be set aside, as the same is un-sustainable.

9. In the result, (a) the Civil Revision Petition is allowed, by setting aside the order dated 16.11.2015 passed in I.A.No.809 of 2015 in O.S.No.238 of 2010 by the learned District Munsif, Ottanchathiram; (b) the learned District Munsif, Ottanchathiram, is directed to appoint an Advocate Commissioner within a period of two weeks from the date of receipt of a copy of this order, with direction to the Advocate Commissioner to inspect the suit property and to file a report within a period of one month thereafter;

(c) on filing such report, both parties are directed to file their objections, if required, within a period of two weeks from the date of filing report and on filing of objections within the time stipulated by this Court and upon consideration of the same, the Trial Court is directed to dispose of the suit within a period of four months from the date of filing objections, if any by conducting the trial on day-to-day basis without giving any unnecessary adjournments to either parties and both the parties are directed to give their fullest cooperation for early disposal of the suit within the time stipulated by this Court as above. No costs. Consequently, connected Miscellaneous petition is closed.

Sd/- Assistant Registrar (CS-III) /True Copy/ Sub Assistant Registrar(SC-I) To

1. The District Munsif, Ottanchathiram.

2. The Record Keeper, V.R.Section,(2 Copies), Madurai Bench of Madras High Court, Madurai.

+1cc to Mr.G.Anbu Saravanan, Advocate SR.No.68096 +1cc to Mr.H.Lakshmi Shankar, Advocate SR.No.67731 AR MK/RSK/SAR 1/31.08.2018/5P/6C C.R.P.(PD)(MD) No.39 of 2016 11.06.2018