The petitioner challenged the appointment of an Advocate Commissioner to verify the existence of a house, arguing it amounts to evidence collection. The Court held that verifying physical facts using tax receipts and site inspection under Order 26 Rule 9 and Section 151 CPC is valid and dismissed the revision petition.
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C.R.P.(MD).No.1118 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT.
Dated : 06.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRP(MD).No.1118 of 2012 in M.P.(MD).No.1 of 2012
Ayyakutty
... Petitioner
Vs.
S.Perumal (Died)
2.Bagavathy
9.Subbiah Doss
10.Parvathi
11.Manju Ayyappan ...Respondents (the respondent Nos.2 to 11 are also brought on record as Lrs of the deceased sole respondent vide Court order dated 16.02.2024 made in C.M.P.(MD).Nos.
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C.R.P.(MD).No.1118 of 2012
10806, 10807 and 10810 of 2019 in C.R.P.(MD).No.1118 of 2012)
PRAYER: Civil Revision Petition has been filed under Articles 227 of the Constitution of India to set aside the order dated 16.02.2012 passed in I.A.No. 682 of 2011 in O.S.No.4 of 2011 on the file of the learned Principal District Munsif cum-Judicial Magistrate, Tiruchendur by allowing this Civil Revision Petition.
For Petitioner : Ms.Jessi Jeeva Priya For Respondent : Mr.M.P.Senthil
ORDER
This petition has been filed against the order dated 16.02.2012 passed in I.A.No.682 of 2011 in O.S.No.4 of 2011 on the file of the learned Principal District Munsif cum-Judicial Magistrate, Tiruchendur.
C.R.P.(MD).No.1118 of 2012
3.The plaintiff has filed a suit for declaration and injunction against the respondent Nos.2 to 11 and his father, namely, Perumal seeking permanent injunction.
the said house and stated that the house tax receipt was a forged one and hence, he filed an application under Order 26 Rule 9 r/w Section 151 of C.P.C to appoint an Advocate Commissioner to look into the physical feature of the suit scheduled property as there was no such house in the said place.
C.R.P.(MD).No.1118 of 2012
stating that the petition for appointment of Advocate Commissioner was not maintainable on the ground that the said petition was filed after examination of the Court witnesses and this main dispute is whether the house exists or not in the suit scheduled property.
C.R.P.(MD).No.1118 of 2012
order.
C.R.P.(MD).No.1118 of 2012
year 1990. According to the defendant in the suit, no house was constructed by anyone and it is a vacant site and he was in enjoyment of the property. He also took a plea that the house tax receipt itself is forged one. But without a house, the local authority would not have issued the house tax receipt. Even after producing the house tax receipt, the defendant raised dispute about the existence of the house. Hence, in order to find out the truth and also to minimise the evidence and to prove the particular fact, namely, existence of the house and the issue of forged receipt and also as the plaintiff filed the suit for declaration of title to the suit scheduled property, the appointment of Advocate Commissioner to resolve the dispute about the existence of the house is necessary and hence, the learned trial Judge has correctly considered the same as per the order 26 Rule 9 and Section 151 of C.P.C, and allowed the application. This Court finds no error in the said order of the learned trial Judge and finds no reason to interfere with by exercising superintendent power under Article 227 of Constituion of India.
12.The learned counsel for the petitioner relied the unreported judgment in C.R.P.(MD).No.60 of 2014. Considering the specific case and also the specific nature of that case, this Court dismissed that petition stating that the Advocate
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C.R.P.(MD).No.1118 of 2012
Commissioner cannot be appointed and petitioner had to establish the same through oral and documentary evidence. The facts of this case is totally different.
13.Accordingly, this Civil Revision Petition stands dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
06.03.2024
NCC : Yes/No Index : Yes/No Internet : Yes/No sbn
To
C.R.P.(MD).No.1118 of 2012
K.K.RAMAKRISHNAN, J.
sbn
CRP(MD).No.1118 of 2012 in M.P.(MD).No.1 of 2012
06.03.2024
2 issues framed by the court
Whether appointment of Advocate Commissioner to verify existence of structure is permissible after examination of court witnesses?
Whether Order 26 Rule 9 and Section 151 CPC empower court to appoint commissioner to ascertain physical facts?
Colour shows how this judgement treated each authority
C.R.P.(MD).No.60 of 2014Distinguished¶51
C.R.P.(MD).No.60 of 2014
3 provisions across 2 enactments
Ayyakutty
S.Perumal (Died)
Bagavathy
Manikandan
Sumathu
Seethalakshmi
K.K.Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
