The Court dismissed the plaintiffs' application seeking appointment of an Advocate Commissioner to inspect the defendant's hotel business books. The Court held the application premature and impermissible as plaintiffs cannot use court process to fish for evidence to discharge their burden of proof in a partition suit.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 05.07.2024 Pronounced on: 12.07.2024
A.No.2830 of 2024
in C.S.No.275 of 2013
P.B.BALAJI, J.
This Application has been filed by the plaintiffs seeking appointment of an Advocate Commissioner to inspect Hotel Pandia's No.527, Thiruvottiyur High Road, Old Washermanpet, Chennai 600 021, in order to ascertain the income of the respondent/defendant from the books of accounts, for a period of 3 years prior to the filing of the above suit upto date.
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Pandia's was started from and out of the family funds and not from the respondent's personal income, though the father, late.S.S.Palanisamy, continued the business along with the defendant jointly. Taking advantage of the account books being available with the respondent, the respondent even refused his father to inspect the same and deliberately, the respondent has not disclosed the monies earned from the said hotel business. He would therefore state that the present Application has become necessary to ascertain the income of the respondent/defendant.
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of sufficient amplitude to take in a case of such nature.
would submit that the suit has been filed for partition, separate possession and also for accounts and there is a connected suit in C.S. No.781 of 2012 also for partition and it is submitted that both the suits are being jointly tried and the evidence is being recorded in C.S. 275 of 2013.
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learned counsel on either side and I have also perused the decision placed on by the learned counsel for the Applicant.
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for the Applicants/Plaintiffs, the case before the Division Bench of the Andhra Pradesh High Court was on a totally different factual matrix. The suit was in respect of a mortgage/redemption and it was a peculiar case where the plaintiff himself sought for appointment of a Commissioner to take inventory of the account books which were in his own custody and addressing such facts, the Hon'ble Division Bench held that Order 26 Rule 9 CPC contemplated appointment of a Commissioner for such purpose. However, in the instant case, the facts are entirely different. The suit is for partition and according to the plaintiffs, the Hotel Pandia's property is a family property and not the absolute property of the defendant.
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gather evidence for the respective cases by using Court process like seeking appointment of an Advocate Commissioner etc. This is one classic case where the plaintiffs are exactly attempting to use the Court process to establish and discharge the burden of proof which is cast on them. This is clearly impermissible in law. Therefore, the present Application is clearly premature and not maintainable. Therefore, I do not find any merits in the said Application. It is made clear that this order does not preclude the applicant to move this Court after passing preliminary decree.
12.07.2024
rkp
P.B.BALAJI,J.
rkp
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Pre-delivery Orders in A.No.2830 of 2024 in C.S.No.275 of 2013
12.07.2024
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1 issue framed by the court
Whether a plaintiff can seek appointment of an Advocate Commissioner to inspect the defendant's books of accounts to ascertain income during the trial stage before evidence is fully led?
Colour shows how this judgement treated each authority
Devatha, Pullayya and another vs Jaldu, Manikyala, Rao and othersDistinguished¶29
AIR 1962 AP 425 · Who else cites this
1 provisions across 1 enactments
P.B.BALAJI
plaintiffs
respondent/defendant
P.B.BALAJI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
