This Court allowed a civil revision petition quashing a lower court's order appointing an Advocate Commissioner to investigate possession facts in a pending suit, holding such evidence collection is impermissible under Article 227.
No order passed in regard to costs.
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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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.02.2017
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.R.P (PD).No.1934 of 2014 and M.P.No.1 of 2014
1.Valarmathi
2.B.Ramu
... Petitioners
Vs.
1.K.Sudhakar
2.K.Subramaniayam Naidu ... Respondents
Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 03.03.2014 passed in I.A.No.464 of 2013 in O.S.No.131 of 2013 on the file of the Principal District Munsif Court, Poonamallee.
For Petitioners : Mr.V.Manohar
For Respondents : no appearance
O R D E R
The revision petitioners are the defendants in the suit filed in O.S.No.131 of 2013. The respondents/plaintiffs filed the suit for permanent injunction
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2.During the pendency of the suit, the respondents filed an
application seeking for appointment of an Advocate Commissioner. The reasons set out in the accompanying affidavit filed in support of the application is that the respondents want to ascertain whether the 2nd defendant in the suit is running "Valarmathi Milk Depot" in the part of the suit premises as stated by him and also to ascertain whether the 2nd defendant is running "Aavin Palagam" at Avadi-Poonamallee Road, Soundhar Complex (Near Chinna Amman Temple), Avadi, Chennai – 600 054. The trial Court allowed the petition partly appointing an Advocate Commissioner and issued a direction to inspect the suit property and submitted a report.
3.The learned counsel appearing for the petitioners contended that the suit is for permanent injunction and the application seeking for appointment of an Advocate Commissioner is filed to find out the details regarding the possession of the 2nd respondent, which can never be done. The possession has to be established and proved by the respective parties to the suit and the Court cannot assist either parties to get the proof regarding the possession, more specifically through an Advocate Commissioner.
4.It is a clear case where the trial Court has committed an error in appointing an Advocate Commissioner, when in the accompanying affidavit
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of the petition itself it is stated that they want to ascertain the possession of the 2nd defendant. The Advocate Commissioner cannot be appointed for making an enquiry regarding the factum of possession. This principle was well settled by the Hon'ble Apex Court and also by this Court. The factum regarding the possession has to be proved by the respective parties and the Court cannot be used as an instrument to collect evidence in respect of the possession of either of the parties in the suit.
5.Accordingly, the order passed in I.A.No.464 of 2013 dated 03.03.2014 is infirm and consequently, the fair and decreetal order passed in I.A.No.464 of 2013 in O.S.No.131 of 2013 are set aside. In result, the Civil Revision Petition in C.R.P.(PD).No.1934 of 2014 is allowed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
Index : Yes Internet : Yes va
24.02.2017
To
The Principal District Munsif Court, Poonamallee.
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S.M.SUBRAMANIAM , J.
va
C.R.P (PD).No.1934 of 2014 and M.P.No.1 of 2014
24.02.2017
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2 issues framed by the court
Whether a trial court can appoint an Advocate Commissioner to ascertain the factum of possession pending a suit for permanent injunction.
Whether the trial court committed an error in allowing an application for appointment of an Advocate Commissioner to inspect the suit premises regarding possession.
1 provisions across 1 enactments
Valarmathi
B.Ramu
K.Sudhakar
K.Subramaniayam Naidu
S.M.SUBRAMANIAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
