In suit for permanent injunction appointment of advocate commissioner not maintainable

Citation

2017 SCC Online Mad 302 

Madras High Court

K.Ezhilarasan vs Karuppathal on 7 February, 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.02.2017 CORAM THE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA CRP PD.No.273 of 2015 and M.P.No.1 of 2015

K.Ezhilarasan .. Petitioner

vs

Karuppathal .. Respondent

Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 24.11.2014 passed by the learned District Munsif, Udumalpet in I.A.No.1672 of 2014 in O.S.No.624 of 2008. For Petitioner : Mr.N.Thiagarajan For Respondents : Mr.N.Umapathy

ORDER

The plaintiff is the revision petitioner. Being aggrieved by the order passed by the Court below in appointing an Advocate Commissioner, by allowing the application filed at the instance of the respondent/defendant, in a suit for permanent injunction, the present revision has been preferred.

2. Heard both sides.

3. The case of the defendant is that during the cross examination of the plaintiff, it was stated by the plaintiff that the suit lands were lying fallow; whereas the defendant has stated that the lands were in cultivation. Therefore, in order to ascertain whether there is any cultivation done in the suit lands, the application was filed by the defendant for appointing an Advocate Commissioner to visit the suit property and to note the physical features with particular reference to the cultivation done. The said application was allowed by the Court below, which is now under challenge in this revision.

4. Admittedly, when the evidence of the plaintiff is over, the defendant has come up with the above application to appoint a Commissioner and to gather evidence through the report. When the suit itself is only for a permanent injunction, not to disturb the peaceful possession of the plaintiff, appointment of a Commissioner, that too, at the instance of the defendant is totally irrelevant. It is the plaintiff, who has to establish his possession to succeed in a suit. The trial Court has appointed the Commissioner without application of mind and beyond the scope of the suit.

5. It is also a settled principle that an Advocate Commissioner cannot be appointed to collect evidence.

6. Though the learned counsel appearing for the respondent/defendant submitted that the Commissioner had already visited the suit property and also filed his report, even presuming that the report of the Commissioner has already been filed, it will not vitiate the right of the revision petitioner/plaintiff. Further when the appointment of the Commissioner itself is not sustainable, the report filed by him would automatically become non-est in the eye of law.

7. In such circumstances, the order dated 24.11.2014 passed by the learned District Munsif, Udumalpet in I.A.No.1672 of 2014 in O.S.No.624 of 2008 is set aside and the Civil Revision Petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed.

07.02.2017 vj2 Index : Yes/No Internet: Yes To The District Munsif, Udumalpet PUSHPA SATHYANARAYANA,J., vj2 CRP PD No.273 of 2015 07.02.2017 http://www.judis.nic.in

Key word
#advocatecommissioner
#injunction
#collectingevidence