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M.R. Subramani Vs. A.S. Elangovan and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.R.P(PD)(MD)No. 2409 of 2012 & M.P(MD)No. 1 of 2012
Judge
AppellantM.R. Subramani
RespondentA.S. Elangovan and Another
Excerpt:
.....the respondents. according to the petitioner, the first respondent is the absolute owner of the suit property by virtue of registered sale deed, dated 8.1.1996 executed by one muthusamy. the petitioner is doing contract business and supply of water and soil in the name of 'mrs earth works and movers' and having jcb lorry tipper lorry. the first respondent entered into a rental agreement with the petitioner/plaintiff on 14.07.2006.therefore, he is a statutory tenant under the first respondent and is in possession and enjoyment of the suit property. a fresh oral rental agreement was entered into between them and the rent was enhanced to rs.1400/-p.m in the year 2010. some misunderstanding arose between the petitioner and first respondent. the first respondent attempted to vacate the.....
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 made in I.A.No.607 of 2010 in O.S.No.369 of 2010, dated 23.09.2011 on the file of the Principal District Munsif, Karur.)

1. This revision has been filed seeking to set aside the fair and decretal order made in I.A.No.607 of 2010 in O.S.No.369 of 2010, dated 23.09.2011 on the file of the Principal District Munsif, Karur.

2. The Petitioner as plaintiff has filed a suit in O.S.No.379 of 2010, on the file of the Principal District Munsif Court, Karur. The aforesaid suit was filed for permanent injunction against the respondents. According to the Petitioner, the first respondent is the absolute owner of the suit property by virtue of registered sale deed, dated 8.1.1996 executed by one Muthusamy. The Petitioner is doing contract business and supply of water and soil in the name of 'MRS Earth Works and Movers' and having JCB Lorry Tipper Lorry. The first respondent entered into a rental agreement with the Petitioner/Plaintiff on 14.07.2006.Therefore, he is a statutory tenant under the first respondent and is in possession and enjoyment of the suit property. A fresh oral rental agreement was entered into between them and the rent was enhanced to Rs.1400/-p.m in the year 2010. Some misunderstanding arose between the Petitioner and first respondent. The first respondent attempted to vacate the petitioner from the suit property. Therefore, the Petitioner filed the above suit for the relief of permanent injunction. In the said suit, the Petitioner has filed an application in I.A.No.607 of 2010 in O.S.No.379 of 2010 to appoint an Advocate Commissioner to note down the physical features of the suit property and to establish that the Petitioner is running his business in the name of 'MRS Earth Works and Movers' and having JCB Lorry Tipper Lorry. The aforesaid application was erroneously dismissed by the Court below resulting the Petitioner to approach this Court by filing the present Civil Revision Petition.

3. According to the learned counsel for the respondents, that the petition filed by the petitioner is not maintainable in law and in facts. The trial Court has rightly dismissed the said application. The revision Petitioner under the guise of appointment of an Advocate Commissioner tried to collect the evidence to establish his possession over the suit property. Therefore the said application has been rightly dismissed by the trial Court. Hence the Civil Revision Petitioner is liable to be dismissed.

4. Heard the learned counsel for the Petitioner as well as the respondents and perused the materials available on record.

5. The Petitioner has filed a suit in O.S.No.379 of 2010 for permanent injunction against the respondents herein. In the aforesaid suit, the Petitioner has filed I.A.No.607 of 2010 for appointment of an Advocate Commissioner to note down the physical features of the suit property and to establish that the Petitioner is running his business in the suit property. According to the Petitioner, admittedly, the Petitioner is a tenant under the first respondent and some misunderstanding arose between them in the year 2010. The first respondent attempted to vacate the petitioner from the suit property. Therefore the present suit has been filed by the Petitioner before the Principal District Munsif Court, Karur. Both the Petitioner as well as the respondents have filed documents before the Court below in support of their case. According to the Petitioner, P.W.1 was examined. At this stage the present application has been filed by the Petitioner for appointment of an Advocate Commissioner to note down the physical features of the suit property and to establish that the Petitioner is running his business in the suit property.

6. The respondents have filed their written statement and denied that the Petitioner was not in possession of the suit property and on contrary, the learned counsel for the respondents contended before this Court that the Court Bailiff has handed over the possession of the suit property to the second respondent on 14.7.2006 and at the time of delivery, the suit property was a vacant site. Now trial has been commenced and P.W.1 has already been examined. At this stage, the present application has been filed. As rightly contended by the learned counsel for the respondents, the prayer sought for in I.A.No.607 of 2010 in O.S.No.379 of 2010 cannot be considered in the light of the decision reported in 2011 3 TLNJ Page 585 Civil, wherein this Court has held that the Advocate Commissioner cannot be permitted to collect evidence.

7. At this juncture, it is appropriate 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.

8. 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.

9. 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.

10. 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.

11. 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.

wherein, this Court has already held that the Advocate Commissioner cannot be appointed to collect evidence to prove the possession of the suit property.

12. In view of the above reasonings, this Court is not inclined to interfere with the order of the Court below. Further, the petitioner has to establish the possession over the suit property by adducing both oral and documentary evidence before the trial Court and thus, the revision fails.

13. Accordingly, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is dismissed. No costs.


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