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G. Kothandaraman Vs. D. Kesavan and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.R.P (PD)(MD) No. 2114 of 2016 & C.M.P (MD) No. 9919 of 2016
Judge
AppellantG. Kothandaraman
RespondentD. Kesavan and Another
Excerpt:
.....of 2009 for declaration and for mandatory injunction in respect of the second schedule of the suit property. during the pendency of the suit, the petitioner herein has filed an application to appoint an advocate commissioner and the said application was allowed and the commissioner has submitted his report along with sketch before the trial court. the respondent has objected for the measurement and the said objection was not properly taken into consideration in the commissioner's report. therefore the petitioner filed a petition in i.a.no.1267 of 2011 to reissue the commission warrant for fresh inspection. after full enquiry, the said application dismissed on the ground that without scraping the earlier report, request for fresh inspection is not acceptable. the trial court had.....
Judgment:

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, praying this Court to set aside the fair and decretal order passed in I.A.No.147 of 2014 in A.S.No.113 of 2012, dated 22.4.2016, on the file of Sub-Court, Sivagangai, Sivagangai District.)

1. This revision has been filed seeking for a direction to set aside the fair and decretal order passed in I.A.No.147 of 2014 in A.S.No.113 of 2012, dated 22.4.2016, on the file of Sub-Court, Sivagangai, Sivagangai District.

2. According to the Petitioner, that the revision petitioner as plaintiff has filed a suit in O.S.No.129 of 2009 for declaration and for mandatory injunction in respect of the second schedule of the suit property. During the pendency of the suit, the petitioner herein has filed an application to appoint an Advocate Commissioner and the said application was allowed and the Commissioner has submitted his report along with sketch before the trial Court. The respondent has objected for the measurement and the said objection was not properly taken into consideration in the Commissioner's report. Therefore the Petitioner filed a petition in I.A.No.1267 of 2011 to reissue the commission warrant for fresh inspection. After full enquiry, the said application dismissed on the ground that without scraping the earlier report, request for fresh inspection is not acceptable. The trial Court had accepted that S.No.93/8 has not been measured correctly. Hence Petitioner has filed the above application to reissue commission warrant for further inspection of the schedule property with the help of surveyor. The said application dismissed by the appellate Court. Aggrieved by the same, the present Civil Revision Petition has been filed by the revision Petitioner for the relief stated supra.

3. Heard the submissions made on either side and perused the materials on record.

4. Admittedly, the Petitioner has filed a suit for declaration and for mandatory injunction in respect of the encroachment area mentioned as 'CDEF' Portion. The Petitioner is claiming his right in respect of 81.75 sq.ft site measuring east-west 27 feet 3 inch and north-south 3 feet in part of S.No.93/8.The Commissioner report was filed before the trial Court, along with plan and sketch. The Trial Court, based on the above said documents, on merits had dismissed the suit. Aggrieved by which, the Petitioner has filed the appeal suit in A.S.No.114 of 2012 before the Subordinate Court, Sivagangai. The present application in I.A.No.147 of 2014 in A.S.No.113 of 2012 filed by the revision petitioner before the appellate Court to reissue of commission warrant to the Commissioner with a direction to inspect the suit schedule property and to file a fresh report along with rough sketch under Order 26 Rule 9 of Civil Procedure Code. The aforesaid application was dismissed on 22.4.2016. On a perusal of the order passed by the appellate Court in the above I.A, it is seen that the Petitioner has already filed I.A.No.1267 of 2011 before the trial Court for the same relief and the same was dismissed on 28.2.2016. The aforesaid order has become final.

5. At this juncture, it is to consider the decision relied on by the learned counsel for the petitioner in Anwar Batcha Vs. S.Mahuedoom reported in 2014(5) CTC 85, wherein this Court has held that in the suit filed by the respondents/plaintiffs seeking permanent injunction restraining the respondent from interfering with his peaceful possession and enjoyment of the suit property, the contention of the defendant clearly demonstrated that object of appointment of advocate commissioner is to elucidate matter in dispute.

6. At this stage, it is appropriate to extract para 16 of the said decision, which reads as follows:

16. On the other hand, leaned counsel appearing for the respondent/plaintiff has vehemently 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 26, C.P.C., this Court deems that a local investigation by the Advocate Commissioner is proper for the purpose of throwing more light on enlighten the Court to take a fair decision.

7. Perusal of the said judgment would show that the petitioner therein has filed the application for appointment of advocate commissioner to note down the physical features of the suit property and also to file a report along with plan. The said citation is not applicable to the facts of the present case. Because, in the instant case, the petitioner/plaintiff has filed the application only for the purpose of proving his possession of the suit property. It is settled law that advocate commissioner cannot collect the evidence to prove the possession of the suit property and hence, the reasons stated by the petitioner for appointment of advocate commissioner cannot be accepted.

8. In the decision in Krishnamurthy T.K. Vs. Tamil Nadu Water and Drainage Board reported in 2006(5) CTC 178, this Court, in para 9, has held as follows:

9. The report of the Advocate Commissioner alone can never be the basis for deciding the Suit as Commissioner should not be appointed to gather evidence to prove the case of the parties. Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the Court in evaluating the evidence to come to a just conclusion. But in this case, Advocate Commissioner was sought for and appointed to gather the evidence to disprove the case of the revision petitioner in respect of a property which is not subject matter of the suit.

9. In another decision in Chandrasekaran Vs. V.Doss Naidu reported in (2005) 3 M.L.J. 473, wherein, this Court in para 10,21 and 22, has held as follows:

10. Countering the arguments, learned counsel for the respondent has drawn the attention of the Court to the number of documents filed along with the plaint and has submitted that in the light of the documents filed by the plaintiff and the earlier litigation, the appointment of Advocate Commissioner is not warranted. It is further submitted that the factum of possession and age of the trees are the main issues to be determined by the Court in the suit and the same cannot be delegated to the Advocate Commissioner. He has further submitted that the factum of possession is to be proved by adducing evidence.

21. The power under Art.227 of the constitution is to be exercised by the Court in its discretion and cannot be claimed as of right by any party. Under Art.227 of the Constitution of India, the well settled position is:-

(1) The High Court's power to revision under Art.227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law, and would be exercised mist sparingly, in cases where grave injustice would be done unless the Higher Court interferes. It cannot be used as appellate or revisional power.

(2) The Power would not be exercised to correct an error of fact or of law, not being an error of law apparent on the face of the record , of an irregularity or illegality of procedure unless such error affects the jurisdiction, or involves a breach of the principles of natural justice; or to reappraise the evidence.

(3) Nor will the High Court, in exercise of this power, substitute its own judgment for that of the inferior court, whether on a question of fact, or of law or interfere with the intra vires exercise of a discretionary power, unless it is arbitrary or capricious or unless there was no evidence at all on which the inferior Court could have come to the conclusion it did, or there was error of finding on a jurisdictional fact . Whether the High Court found fault with the appellate court in declining to take into consideration certain documents and took them on record, instead of substituting its opinion on the merits of the case, it should have remanded the matter back for the opinion of the appellate Court, it being the final Court of fact.

(4) Nor can the High Court, nor being an appellate Court, pass an order of remand. In short, as regards findings of fact of the inferior Courts, the jurisdiction under Art.227 is limited to only examining whether the subordinate Court kept itself within the bounds of its authority in reaching the findings of fact. Consequently, the High Court cannot quash the judgment of the subordinate Court merely on the ground that its findings of fact were erroneous, but could do so only if the subordinate Court came to its conclusion without any evidence or upon a misreading of the evidence, or if its conclusions were perverse.

There is nothing to suggest that the impugned order is perverse or in violation of law warranting interference under Art.227 of the Constitution of India.

22. Upon consideration of the facts and circumstances of the case, learned District Munsif has rightly declined to appoint Advocate Commissioner to note down the physical features and thereby elucidating the factum of possession. The impugned order does not suffer from any material irregularity. This revision petition has no merits and is bound to fail.

10. In view of the above facts and circumstances and in view of the dictum laid down in the decision reported in 2014(1) MWN(Civil) 268,this Court is not inclined to entertain the present Civil Revision Petition filed by the Petitioner and hence the Civil Revision Petition fails.

11. Accordingly, the Civil Revision Petition is dismissed at the stage of admission itself. Consequently, connected Miscellaneous Petition is dismissed. No costs.


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