In a civil revision petition, the Madras High Court allowed the petitioner to set aside the trial Court's dismissal of an application to appoint an Advocate Commissioner for demarcating disputed land boundaries between siblings.
Revision petition allowed; impugned order set aside; application for appointment of Advocate Commissioner allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 04.04.2014
CORAM
THE HONOURABLE MR.JUSTICE T.MATHIVANAN
C.R.P(MD)No.258 of 2014 (PD) and M.P(MD)Nos.1 & 2 of 2014
P.Robinson .. Petitioner/Plaintiff/Petitioner
vs.
P.Vijaya Nesan .. Respondent/Defendant/Respondent
Prayer: This Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and decretal order dated 03.08.2013 and made in I.A.No.432 of 2013 in O.S.No.4 of 2010 on the file of the learned First Additional District Munsif, Kuzhithurai.
For Petitioner :Mr.K.N.Thampi
For Respondent :Mr.N.Dilipkumar
ORDER
The fair and decretal order dated 03.08.2013 and made in I.A.No.432 of 2013 in O.S.No.4 of 2010 on the file of the learned First Additional District Munsif, Kuzhithurai are under challenge in this Memorandum of Civil Revision Petition.
2.The revision petitioner is the plaintiff in the suit in O.S.No.4 of 2010, whereas the respondent herein is the defendant.
4.It is revealed from the records that the revision petitioner, being the plaintiff, has filed the suit in O.S.No.4 of 2010 on the file of the learned District Munsif Court, Kuzhithurai, Kanyakumari District as against the respondent herein seeking for the relief of permanent injunction. The suit was https://hcservices.ecourts.gov.in/hcservices/ contested by the respondent by filing his written statement in the month of July 2010. It is also revealed that the revision petitioner has also taken out an application in I.A.No.432 of 2013
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under Order 26 Rule 9 r/w Section 151 C.P.C., to appoint an Advocate Commissioner to note down the following facts:-
This petition was also resisted by the respondent by filing his counter statement. After hearing both sides, the learned Judge has proceeded to dismiss that application on 03.08.2013 on the ground that in order to ascertain the boundaries of the suit properties, the appointment of commissioner did not require. Impugning this order, the plaintiff has approached this Court with this memorandum of civil revision petition.
5.Mr.K.N.Thambi, learned counsel appearing for the petitioner has argued that the subject matter of the suit is related to 22 1/2 cents in R.S.No.495/4A of Kaliyal Village as per the Will dated No.20/2003 executed by the father of the revision petitioner as well as the respondent. The revision petitioner had got one half share on the Southern portion and the respondent being his brother got one half share on the northern portion and according to this arrangements, the revision petitioner, being the plaintiff, is in possession of 11 1/4 cents in the above said survey number.
7.On the other hand, Mr.Dilip Kumar, learned counsel for the respondent has drawn the attention of this Court to the impugned order and argued that as rightly abserved by the learned trial Judge after placing reliance upon the judgement in 2012-5- L.A.300 (Santha Satheesh vs. H.J.Walter and others), for the purpose of https://hcservices.ecourts.gov.in/hcservices/ ascertaining the four boundaries of the suit property, the appointment of commissioner need not be sought for.
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8.But Mr.K.N.Thambi, learned counsel for the petitioner/plaintiff has submitted that the best evidence in case of such nature could be obtained only by appointment of a commissioner to ascertain the extent of lands in possession and enjoyment of each party to the contest and also the demarcation of the land is very much essential and it could not be termed as procurement of evidence but it ought to have been considered as legal necessity to substantiate the case of revision petitioner, which the trial judge had failed to consider. In support of his contention, he has placed reliance upon the decision of this Court in AIR 2004 Madras 419 (Vaithinattar v. Sakkubal Ammal). In an another decision 1999(2) MLJ 526 (L.Manoharan and others v. A.Ramathilagam and another), the learned Single judge of this Court has observed that when there is dispute relating to the parties with reference to identity and location, it is just and necessary that the Commissioner be directed to measure the property with the help of a qualified surveyor and also to find out the area of dispute, so that much of oral evidence can be reduced.
10. The suit was filed seeking the relief of bare injunction. During the pendency of the suit, an application was taken out under Order 26 Rule 9 of the Code of Civil Procedure for appointment of an Advocate Commissioner and that application was dismissed. Challenging the correctness of the said order, a revision was filed before this Court by the petitioner therein. While disposing the revision petition K.Sampath.J has observed that no prejudice would be caused by the appointment of an Advocate Commissioner for the purpose of inspecting the property and submitting his report on the physical features, measurements etc. Though the Commissioner cannot decide the dispute, his inspection and report would help the Court in deciding the dispute, therefore, the learned Judge had proceeded to allow the revision.
12.In the decision first cited supra, the learned Single Judge https://hcservices.ecourts.gov.in/hcservices/ of this Court has held that the Commissioner cannot be appointed for local investigation where possession of property sought to be inspected and investigated by Commissioner is in dispute. It has
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also been observed that the Court cannot assist either party to suit in collecting evidence where such evidence can be collected by party himself. Possession of property has to be adjudicated only by oral and documentary evidence.
13.In the decision cited second supra, a suit for declaration and removal of superstructure and also for the relief of injunction was filed. The description of property in plaint bereft of boundaries. Under those circumstances, an Advocate Commissioner was sought to be appointed for ascertaining the four boundaries. While disposing the civil revision petition it was observed that the appointment of Commissioner would amount to collecting of evidence and it would be prejudicial to the defendants.
14.On coming to the instant case on hand, as stated in the foregoing paragraphs, the revision petitioner as well as the respondents are brothers. The revision petitioner, being the plaintiff, has been banking on a registered Will document No.20/13 said to have been executed thereafter and in pursuant to the Will, he has got half share viz., 11 1/4 share, his brother being the respondent herein has got the remaining 1/2 share viz., 11 1/4 share. Besides this, he has also contended that the respondent has been making arrangements to put up boundaries for the purpose of defeating the rights of the revision petitioner and therefore it has become necessary for the revision petitioner to file the above said application seeking the relief of appointment of commissioner.
16.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 Rule 9 of Order 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 https://hcservices.ecourts.gov.in/hcservices/ commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
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17.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) .
19.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.
| 20.In Payani Achuthan v. | Chamballikundu Harijan Fisheries |
|---|---|
| Development Co-operative Society | , reported in AIR 1996 Ker 276, it |
| has been held that the Court ca | nnot prevent a party from adducing |
| the best evidence, if such evide | nce can be gathered with the help |
| of a Commissioner. Refusal of t | he request of the party to appoint |
| a Commissioner under Order XXVI | Rule 9 C.P.C., to make a local |
| investigation in an appropria | te case amounts to failure of |
| exercise of jurisdiction vested | in it. In a suit for injunction to |
| restrain the defendants from in | terfering with the possession due |
| to alleged encroachment into the | land of the plaintiff, one of the |
| methods to find out as to wheth | er or not there is encroachment is |
| to have the local investigation | done by a competent Commissioner. |
| Thus, in such a case Trial Cou | rt was not right in rejecting the |
| prayer for appointment of Commis | sioner. |
17.This Court has carefully considered the context stated herein before, as well as the decisions cited above. Having been given careful consideration to the grounds of revision, this Court finds that the conclusion of the learned trial Judge is absolutely wrong. The circumstance which is warranted, the revision petitioner being the plaintiff to come forward with an application under Order 26 Rule 9 of C.P.C., is to be taken into account.
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and the Trial Court is directed to appoint an Advocate Commissioner for the purposes specified in the petition. The trial Court is also directed to dispose of the suit by the end of August 2014.
Sd/Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar
To
The First Additional District Munsif, Kuzhithurai
+One cc to M/s.N.Dilipkumar, Advocate, SR.No.20871
+One cc to M/s.K.N.Thampi, Advocate, SR.No.20825
am RL/4 c- 6/6/2014
CRP(MD)No.258 of 2014(PD)
04.04.2014
2 issues framed by the court
Whether the trial Court erred in dismissing the application for appointment of an Advocate Commissioner under Order 26 Rule 9 of the CPC.
Whether refusal to appoint a Commissioner for local investigation amounts to failure in exercise of jurisdiction when elucidation of disputed boundaries is necessary.
Colour shows how this judgement treated each authority
Santha Satheesh vs. H.J.Walter and othersDistinguished¶26
2012-5- L.A.300
Vaithinattar v. Sakkubal AmmalFollowed¶28
AIR 2004 Madras 419 · Who else cites this
L.Manoharan and others v. A.Ramathilagam and anotherFollowed¶28
1999(2) MLJ 526
Kandaswamy Konar and another v. Kandaswamy Konar and othersFollowed¶29
2000(3) MLJ 464
Saraswathy v. ViswanathanFollowed¶29
(2002)2 M.L.J. 133
Chinnathambi and others vs. AnjalaiDistinguished¶31
2006 (5) CTC 494
Santha Satheesh Vs. H.J.Walter and othersDistinguished¶31
2012 (6) CTC 502
Ankura & Ankura Charan Sahu v. Arjuna Charan PaleiFollowed¶40
1998 AIHC 1702
Debendranath Nandi v. natha BhuiyanFollowed¶41
AIR 1973 Ori 240 · Who else cites this
Payani Achuthan v. Chamballikundu Harijan Fisheries Development Co-operative SocietyFollowed¶43
AIR 1996 Ker 276 · Who else cites this
2 provisions across 2 enactments
P. Robinson
P. Vijaya Nesan
T. Mathivanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
