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Appointment of Advocate Commissioner is not at all warranted in a suit for bare injunction especially, the same cannot be allowed at the appeal stage



Madras High Court


Venkatachalapathi @ Boopathi vs P.J.Venkataraman on 5 July, 2012

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 05.07.2012 Coram The Honourable Mr.Justice K.RAVICHANDRA BAABU CRP (NPD) No.4370 of 2011 and M.P.No.1 of 2011

Venkatachalapathi @ Boopathi ... Petitioner

Vs

P.J.Venkataraman ... Respondent

Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 08.08.2011 made in I.A.CFR No.14502 of 2011 in A.S.No.14 of 2011 on the file of the First Additional Sub Court, Erode by allowing this Civil Revision Petition. For Petitioner : Mr.N.Manokaran For Respondents : Mr.T.Murugamanickam

- - - - - O R D E R

The plaintiff in a suit for bare injunction is the petitioner before this Court. The present civil revision petition is filed by the petitioner aggrieved against the order passed by the Court below in dismissing the application filed by the petitioner seeking for appointment of a Commissioner to note down the physical features of the suit property.

2.The fight is between the father and the son. The suit after contest was dismissed by the trial Court by its judgment and decree dated 27.01.2011. Aggrieved against the same, the petitioner preferred an appeal before the Sub Court, Erode in A.S.No.14 of 2011. During the pendency of the appeal, the petitioner filed I.A.No.892 of 2011 seeking for appointment of Commissioner to note down the physical features of the suit property and to take measurements. The said application was dismissed by the Court below by its order dated 08.08.2011 holding that appointment of Advocate Commissioner that too for noting down the physical feature does not arise in the suit for bare injunction. Aggrieved against the same, the present Civil Revision Petition is filed by the petitioner.

3.The learned counsel for the petitioner argued that the appointment of the Advocate Commissioner to note down the physical features of the suit property is highly essential to prove the possession of the petitioner over the suit property as the suit filed by him was dismissed by the trial Court. According to the learned counsel, no prejudice would be caused to the respondent if the appointment of Advocate Commissioner is made. The learned counsel for the petitioner in support of his contention, has relied on a judgment of this Court reported in 2008(2) TLNJ 93(Civil) (Karthikeyan v. Kannan alias Rajendran).

4.Per contra, the learned counsel for the respondent contended that the appointment of Advocate Commissioner is not at all warranted in a suit for bare injunction especially, the same cannot be allowed at the appeal stage. It is the contention of the learned counsel for the respondent that the petitioner is indulging in dragging on the proceedings by one way or other by filing vicious applications.

5.Heard the learned counsel for the petitioner as well as the learned counsel for the respondent.

6.The petitioner as the plaintiff filed the suit before the District Munsif Court, Erode seeking for permanent injunction against the respondent herein. The respondent is none else than the father of the petitioner. The trial Court passed the judgment and decree dated 27.01.2011 on merits thereby dismissing the suit filed by the petitioner herein. Aggrieved against the same, he filed an appeal before the Sub Court, Erode, which is now pending before the Appellate Court. The petitioner has chosen to file an application seeking for appointment of Advocate Commissioner to note down the physical features of the suit property and to take measurements of the same. In support of the said application, the petitioner has filed an affidavit wherein, he has stated that he is in possession and enjoyment of the suit property exclusively and noting down the existing physical features of the suit property are absolutely necessary to decide the suit. It is also stated by the petitioner that if a Commissioner is appointed, he will be in a better position to bring the entire existing physical feature of the suit property by way of oral evidence. Therefore, he seeks for appointment of Advocate Commissioner.

7.In my considered opinion, in a suit for bare injunction filed by the petitioner, the necessity for appointment of Advocate Commissioner that too for noting down the physical features of the suit property does not arise and such exercise is not going to help the petitioner in any manner in deciding the suit for bare injunction at the appeal stage. Admittedly, the petitioner has not taken any such application during trial. Even assuming that such appointment of Advocate Commissioner is necessary, it should be noted that only at the appeal stage, the petitioner has chosen to file the present application that too with an averment only for noting down of the existing physical features of the suit property by appointment of Advocate Commissioner. The said reasoning of the petitioner seeking for appointment of Advocate Commissioner is wholly unjustifiable, more so, in a suit for bare injunction. What is to be seen, mainly, in a suit for bare injunction is as to whether the plaintiff was in possession and enjoyment of the suit property on the date of filing of the suit. Therefore, taking out an application for appointment of Commissioner at the stage of appeal is nothing but an after thought and unnecessary exercise which the Court below has rightly rejected. No doubt, the learned counsel for the petitioner has relied on a case reported in 2008(2) TLNJ 93(Civil) (cited supra) wherein, the learned Judge has observed that there was an attempt on the part of the plaintiff in that case to find out the truth through the Commissioner as to who is actually in possession of the suit property and the learned Judge has also found that when Commissioner goes to the suit property and note down the physical features, certainly the Court would be in a better position to analyse and understand as to whether the plaintiff or the defendant is speaking the truth with regard to the actualities in the suit property. The facts of that case reveals that commission application was filed at the suit stage itself.

8.But in this case, the petitioner has not taken any such application during trial and only at the appellate stage he filed such application with an averment as follows:-

5.I submit that the existing physical features of the suit properties are absolutely necessary to decide the suit. Further, if a commissioner is appointed and his report and plan are received, the valuable time of this Honourable Court will be saved. Further, I am not in a position to bring the entire existing physical features of the suit properties by way of oral evidence. Therefore, I am filing this application for an appointment of a Commissioner. Otherwise, I will be put to irreparable loss and hardships.

9.From the reading of the above said averments made by the petitioner in his affidavit, there is absolutely no justification seeking for appointment of Advocate Commissioner in a suit for bare injunction that too at the appellate stage. Therefore, the Lower Appellate Court has rightly rejected the claim of the petitioner. Moreover, the facts of each has to be decided on its own merits and the learned Judge has also observed so in his judgment reported in 2008(2) TLNJ 93(Civil) (cited supra) relied on by the petitioner. Therefore, the said decision is not applicable to this case as it is factually distinguishable.

10.Taking note of the facts and circumstances of the case as well as the pleading of the petitioner and the order passed by the Court below, I am of the firm view that there is no reason for interfering with the order passed by the Court below. Accordingly, the Civil Revision Petition is dismissed. However, the appeal is directed to be taken up by the lower Appellate Court for disposal at an early date at any event, not later than three months from the date of receipt of a copy of this order. No costs.

05.07.2012 jbm Internet : Yes/No Index : Yes/No To The First Additional Sub Court, Erode. K.RAVICHANDRA BAABU,J jbm CRP (NPD) No.4370 of 2011 05.07.2012

Key word
#commissioner
#advocatecommissioner
#injunction

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