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second application for appointment of advocate commissioner absolutely maintainable before the appellate Court 


Madras High Court


K.S.Palanisamy vs Ramasamy on 17 January, 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 17.08.2016 Pronounced on 17.01.2017 DATED: 17.01.2017 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN CRP(NPD)No.3895 of 2011 and M.P.No.1 of 2011

K.S.Palanisamy .. Petitioner

Vs.

1.Ramasamy 2.Rajesh ..Respondents (2nd Respondent herein is given up)

Prayer: Civil Revision Petition filed under Section 227 of the Constitution of India, against the fair and final order dated 26.07.2011 made in I.A.No.28 of 2010 in A.S.No.10 of 2009, on the file of the Sub-Court, Sankari. For Petitioner : Mr.T.Murugamanickam For Respondent : Mr.P.Valliappan (for R1) R2 Given up

O R D E R

The appellant in A.S.No.10 o 2009 is the revision petitioner before this Court, challenging the order passed in I.A.No.28 of 2010, dated 26.07.2011, rejecting the petitioners request for the appointment of Advocate Commissioner.

2.The case of the appellant/first defendant is that the first defendant/plaintiff has filed the above suit against this appellant/first defendant and the second respondent/second defendant for permanent injunction and the same was decreed. Against the said decree, this appellant/first defendant has filed an appeal in A.S.No.10 of 2009 before the learned Sub-Judge, Sankari.

3.While pendency of the above appeal, this appellant/first defendant has filed an application in I.A.No.28 of 2010 for appointment of Advocate Commissioner to measure S.No.40/1 of Avarangam Palayam Village neither it is acre 1.25 or 1.33 and whether S.No.40/1A Avarangam Palayam Village is in existence or not at the stage in the interest of justice.

4.In this petition, this appellant/first defendant stated that there is no 8 cents of lands in ground reality in S.No.40/1A of Avarangam Village. Actually 1.25 acres of land in S.No.40/1 is available on ground and not as 1.33 acres as alleged by the plaintiff is that the Firka Surveyor and Taluk Surveyors also measured the land in S.No.40/1A and the available land is only 1.25 acres in S.No.40/1.

5.The appellant/first defendant has come forward by saying that the facts suppressed by the plaintiff and the plaintiff also not filed any commission petition before the lower Court in the above suit to note down the physical features and measure the property to know the correct extent. The appellant/first defendant states that the plaintiff applied for patta by suppression of facts and obtained the same behind the back by the defendant and other co-owners and the Tahsildar without giving any notice to the co-owners and enquiry granted patta and without measurement sub divided the property in favour of the plaintiff. Therefore, the order passed by the Tribunal, the appellant/first defendant also prayed the appeal before the Revenue Divisional Officer, after came to know during the issue of patta and the sub division order and the same is pending. Therefore, he sought for the appointment of Advocate Commissioner. In the appeal, the appellant/first defendant also states that already he has filed application in I.A.No.324 of 2007 in O.S.No.298 of 2006 for appointment of Commission to measure the suit properties whether 5 cents lands is available in ground reality in S.No.40/1 and S.No.40/1A of Avarangam Palayam Village and the same was opposed by the first respondent/plaintiff and the lower Court also dismissed the said commission application, against which the appellant/first defendant has preferred the revision in CRP.No.3390 of 2008 and this Court dismissed the same. But the appellant/first defendant also states that this Court passed an order in the above CRP.No.3390 of 2008, as follows:

It is therefore clear that simply because the first defendant/ revision petitioner did not prefer any appeal as against the said sub division on effected by the revenue authority, the revision petitioner is not precluded from disputing such sub division effected by the revenue authority in this suit by way of defence as against the plaintiffs claim. Hence, fedpunge such portion from the order of the trial Court.

Relating to appointment of Advocate Commissioner is concerned, I could see considerable force in the submission of the learned counsel for the plaintiff that, the plaintiff being dominus litus as per the Indian Evidence Act is bound to prove his case. It is not for the defendant to get a Commissioner appointed in and injunction suit. I am also of the opinion that, from the available records the Court itself could assess as to whether actually on ground there is 1.25 acres or 1.33 acres extent of land for which no appointment of Advocate Commissioner is required.

The trial Court is directed to dispose of the suit being untrammelled and uninfluenced by any of the observation made in this order. However the Trial Court shall not place reliance on its finding relating to non preference of the appeal as against the sub division effected by the revenue authority. Therefore, he sought for the appointment of Advocate Commissioner in the appeal.

6.On receipt of the notice in the appeal and also in the I.A.No.28 of 2010, the first respondent/ plaintiff has filed his counter denying the allegations. The first respondent also states that the earlier application filed by the appellant/ first defendant in I.A.No.324 of 2007 in O.S.No.298 of 2006 for the claim of the appointment of Advocate Commissioner has been taken out by the trial Court and the same was upheld by this Court in the suit proceedings himself. The appellant attempted to seek the appointment of Advocate Commissioner in the appeal proceeding is certainly a malafide, unlawful one. The first respondent also states that this appellant has filed a separate suit in O.S.No.185 of 2009, on the file of the District Munsif Court, Sankari for the relief of declaration and permanent injunction. But he has not filed any commission petition for appointment of Advocate Commissioner in that suit to measure the suit property of S.No.40/1. The first respondent also states that if at all the appellant is really disputing the extent of the property, he could have straight away filed a commission petition in his suit in O.S.No.185 of 2009. Therefore, the non-filing of commission petition in his suit in O.S.No.185 of 2009 will amply prove that the petitioner has not filed commission petition in this appeal proceeding in a bonafide manner, but only with a view to drag on the appeal proceedings he has filed this petition in the appeal.

7.The first respondent also states that this appellant/first respondent has made out any valid or reliable ground in the affidavit to file the 2nd commission petition in the appeal proceedings. Further in the appeal proceedings the commissioners report and plan do not have any credibility without being marked as exhibit. Apart from this, the appellant has not filed any separate application to receive the additional documents in the appeal proceedings under Order 41 Rule 27 of C.P.C. Therefore, without filing any separate application, this commission petition filed by the appellant is not maintainable.

8.The first respondent also states that it is the settled position of law that in a permanent injunction suit the parties are not entitled to seek the appointment of Advocate Commissioner at their whims and fancies. But the petitioner is seeking the appointment of commissioner to canvas and gather evidence much against the recitals and admissions in their registered documents, since the same is not permissible under law. Therefore, the appellant has not made out any valid ground to seek the appointment of commissioner nor how the commissioners report will improve his case in the appeal stage. Therefore, he sought for dismissal of the petition.

9.Considering both side arguments, the learned Sub-Judge, Sankari was pleased to dismissed the application on 26.07.2011 in I.A.No.28 of 2010 for appointment of Advocate Commissioner on the ground that the petition in I.A.No.324 of 2007 in O.S.No.298 of 2006 was dismissed by the trial Court on 10.09.2008 and the said order was confirmed by this Court in CRP.No.3390 of 2008 on 22.01.2009. Challenging the said order, this petitioner/appellant has filed this Civil Revision Petition before this Court.

10.Heard Mr.T.Murugamanickam, learned counsel appearing for the petitioner and Mr.P.Valliappan, learned counsel appearing for the first respondent.

11.Admittedly, the appellant/first plaintiff has filed an application in I.A.No.324 of 2007 in O.S.No.298 of 2006 for appointment of Advocate Commissioner and the same was dismissed by the trial Court, against which this petitioner has filed the civil revision petition before this court in CRP.No.3390 of 2008 and the same was dismissed on 22.01.2009 by this Court by confirming the order passed by the trial Court.

12.This Court while passing the order in the above civil revision petition by dismissing the application pointed out that the plaintiff namely the first respondent/plaintiff herein being dominus litus as per the Indian Evidence Act, is bound to prove his case, but it is not for the defendant namely the first defendant/the appellant herein to get a commissioner appointed in an injunction suit. Therefore, in the injunction suit, no appointment of Advocate Commissioner is necessary. Hence, the said civil revision petition was dismissed. But, the learned counsel appearing for the petitioner Mr.T.Murugamanickam urged before this Court that the first appellate court namely the Sub-Judge, Sankari has allowed the application for appointment of Advocate Commissioner on the sole ground that the Commission if issued would resolve the controversy between the parties. He has also pointed out that the actual possession to be proved to reflect what is remaining on ground, as per documents of title and the application was also filed in the year 2010 itself and therefore, there was no delay on the part of the petitioner/appellant. Therefore, he prayed this Court for appointment of Advocate Commissioner.

13.Per contra, Mr.P.Valliappan, learned counsel appearing for the first respondent has produced the following judgments for supporting his case before this Court as follows:

[1] AIR 1992 DELHI 267 (V.Bhagat v. Mrs.D.Bhagat) [2] AIR 1977 KARNATAKA 60 (A.Thakurdas and another v. A.Venilal and others) [3] AIR 1969 MADRAS 144 (V. 56 C 34) (T.R.Rajagopala Iyer v. T.R.Ramachandra Iyer) [4] AIR 2000 CALCUTTA 89 (Niya Nanda Ghosh and others v. Smt.Alo Rani Ghosh and others) [5] 2014 (2) CTC 68 (Thangaraj v. Pappathi) [6] Unreported Judgment CRP(MD)No.1620 of 2011 (Shahirabi and others v. N.Hussain Khan and others) [7] Unreported Judgment CRP(PD)No.2183 of 2014 (Varadharajan and another v. S.Paramasivam) [8] Unreported Judgment CRP(NPD)No.4370 of 2011 (Venkatachalapathi @ Boopathi v. P.J.Venkataraman) [9] Unreported Judgment CRP(PD)No.2065 of 2015 (Muthamil Selvam and another v. Alagappan Udayar)

14.The learned counsel Mr.Valliappan, appearing for the first respondent has pointed out that in the judgment produced in AIR 1969 MADRAS 144 (V.56 C 34), this Court held that the appointment of commissioner in the appeal is a rarity and seldom resorted to. Such an appointment is not authorised by Rule 27 Order 41, he has also stated that is a power which should be very sparingly used and only in the interests of justice.

15.In another judgment rendered by the Honble Karnataka High Court reported in AIR 1977 KARNATAKA 60, which is held as follows:

(A) Civil P.C. (5 of1908), S.11 Res judicata Interlocutory proceedings arising out of the same suit Principle of res judicata can be invoked.

The concept of res judicata has its genesis in the finality of litigation. It is fairly settled that the principle of res judicata can be invoked even in the interlocutory proceedings arising out of the same suit.

16.The Honble Delhi High Court in the case of V.Bhagat v. Mrs.D.Bhagat reported in AIR 1992 DELHI 267 held as follows:

(B) Civil P.C. (5 of 1908), S.11 Res judicata Orders in interlocutory matters, pending proceedings Can operate as res judicata between the parties.

...Held, that this order would operate as res judicata between the parties because it is well established that even orders in interlocutory matters during pendency of certain proceedings can be res judicata between the parties.

17.The other judgment rendered by the Honble Calcutta High Court reported in AIR 2000 CALCUTTA 89 held as follows:

Civil P.C. (5 of 1908), O.40, R1(9), S.11 Application for appointment of receiver Dismissal of Appeal against During pendency of appeal second application seeking same relief was filed on same set of facts forming subject matter of first application Not maintainable being hit by principles of res judicata.

18.The unreported judgment passed by this Court in CRP(NPD)No.4330 of 2011 dated 05.07.2010 as follows:

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.

19.In one another judgment reported in 2014 (2) CTC 68 held as follows:

Code of Civil Procedure, 1908 (5 of 1908), Order 26, Rule 9 Appointment of Advocate Commissioner at Appellate stage Suit for bare injunction dismissed by Trial Court Appeal by Plaintiff Appointment of Advocate Commissioner sought to measure, demarcate and identify Suit property and fix boundary line between Suit property and highway Poramboke land with assistance of Taluk Surveyor- Application dismissed Revision against said Order If Plaintiff is not confident about boundary line, he ought to have filed Suit for demarcation of boundary and not for bare injunction Plaintiff could also seek permission of Court to withdraw Suit with permission to file fresh Suit, projecting absence of proper description of Suit property But Plaintiff cannot indirectly convert Suit for bare injunction into one for identifying and fixing boundary of Suit property Already Commissioner was appointed by Trial Court No infirmity in Order passed by Appellate Court C.R.P. dismissed.

20.In another unreported judgment in CRP(PD).No.2065 of 2015 dated 13.07.2015 as follows:

8.It is well settled dictum of the Apex Court that no Commissioner was appointed for collecting evidence. It is the duty of the respondent/ plaintiff to prove his case by letting oral and documentary evidence. But that factum was not considered by the trial Court. Hence, I am of the view, the trial Court has erroneously allowed the application for appointment of Advocate Commissioner to collect evidence. So the order passed by the trial Court in I.A.No.2021 of 2014 is hereby set aside and this revision petition is allowed.

21.In unreported judgment in CRP(MD).No.1620 of 2011 dated 03.12.2014 passed by this Court held as follows:

5.It is settled position that in a suit for permanent injunction, as rightly found by the trial Court, the issue that has to be decided with regard to the possession of the properties.

7.Whether the building is in a dilapidated condition or not can be proved by the plaintiffs by producing oral and documentary evidences?

8.It is also settled position that a party cannot collect evidence through Advocate Commissioner.

9.In these circumstances, the present application filed by the plaintiffs seeking for appointment of an Advocate Commissioner in a suit for bare injunction was rightly dismissed by the trial Court. I do not find any reason to interfere with the order passed by the trial Court.

22.In another unreported judgment in CRP(PD).No.2183 of 2014 dated 06.01.2015 held as follows:

4.It is settled principle that no Advocate Commissioner can be appointed to gather the evidence as it is legally unsustainable. The suit is being one for bare injunction, an Advocate Commissioner cannot be appointed to find out the factum of possession. Admittedly, the plaintiff has come out with the suit for injunction not to evict him unless due process of law. In the said circumstances, there is no need for appointment of Advocate Commissioner for finding out the factum of possession or the cultivation of paddy. Hence, the order of the learned II Additional District Munsif, Trichirappalli is not sustainable and the same is set aside.

23.Admittedly, I have passed an order in a case of B.Amutha v. Anandhi Sankara Narayanan which is reported in (2016) 8 MLJ 368 passed an order that the appointment of Advocate Commissioner in the injunction suit for bare injunction is maintainable and the Advocate Commissioner can be appointed and the bind order has been passed based on the order passed by this Court in a judgment reported in the case of Saraswathy and Another v. Viswanathan in CRP.No.2352 of 2001 dated 13.03.2002. In the said judgment, I stated as follows:

27.In the said judgment, the learned Judge of High Court, Andhra Pradesh clearly states that when there is a dispute or issue with regard to identify of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited. The provision of Order 26 Rule 9 of CPC contemplates Commissions to make local investigations in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. But, provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. The issue of the above provision appointment of a Commissioner to visit the suit property and also demarcate the property or properties taking assistance from a qualified surveyor and also note the physical features of the property in question is qualified.

28. Therefore, as per the judgment referred by the various Courts, I am of the consider view that absolutely there was no prejudice would be caused in the respondent / defendant by appointing an Advocate Commissioner for the purpose of inspecting the property and submit his report on physical features, measurements etc. In fact, though the Commissioner cannot decide the dispute, his inspection and report would helpful the Court in deciding the dispute. Hence, a local investigation is the best way to find out the position and the party, and coveting the evidence to place before the Court through local investigation by the Commissioner cannot be shut out of their right. Therefore, the appointment of Advocate Commissioner is maintainable in this case, even in the suit filed by the petitioner / plaintiff for permanent injunction and accordingly there is necessity for the interference by this Court and accordingly, I am inclined to set aside the order passed by the learned Principal District Munsif Court, Poonamallee, in I.A.No.1471 of 2012 in O.S.No.121 of 2012 dated 04.07.2013 and suitable direction in the issue to the trial Court for appointing an Advocate Commissioner.

24.All these judgments has clearly held that in a suit for bare injunction, no appointment of Advocate Commissioner can be appointed and this question was considered and passed the order in the above reported judgment.

25.But, on the contra of the above judgments, I cannot change that the appointment of Advocate Commissioner, in a bare injunction will not be necessary and not maintainable. I only concur that the appointment of Advocate Commissioner to be maintainable in the bare injunction suit, since it is not for appointing the Advocate Commissioner to collect the evidence through Advocate Commissioner, but his report would help the Court in deciding the dispute. Therefore, in my considered opinion that the appointment of Advocate Commissioner will be maintainable even in the bare injunction suit.

26.The next question should be considered that whether the second application for appointment of Advocate Commissioner is maintainable or not and whether the appellant either the plaintiff or the defendant have right to seek for appoint an Advocate Commissioner in the appeal stage.

27.In both the above points, I categorically held that this Court and the Honble Apex Court in many of the judgments clearly held that the second application is not maintainable, unless the first Advocate Commissioner report is scrap by the Court concerned. This Court and the Honble Apex Court also held that the appointment of Advocate Commissioner in the appeal stage is maintainable, the Advocate Commissioner can be appointed in the appeal stage, on the instance of either by the appellant or by the respondent.

28.Admittedly, in this case, the appellant/first defendant has filed an application in I.A.No.324 of 2007 in O.S.No.298 of 2006 for the appointment of Advocate Commissioner, which was dismissed by the trial Court and the same was confirmed by this Court in CRP.No.3390 of 2008 dated 22.01.2009.

29.Therefore, it is crystal clear that as on date there was no appointment of Advocate Commissioner made in the suit in O.S.No.298 of 2006 and the question of the scrap report is not arosed in this case for the appointment of Advocate Commissioner on second time.

30.As per the judgments rendered by this Court and the Honble Apex Court, in fact this Court in the judgment rendered in AIR 1969 MADRAS 144 (V. 56 C 34) it is made clear that the appointment of commissioner in the appeal is a rarity and is seldom resorted to. Such an appointment is not authorised by Rule 27 of Order 41, this Court also held in the above judgment that the said power which should be very sparingly used and only in the interest of justice.

31.Though the Honble Karnataka High Court reported in 1977 KARNATAKA 60 held that in the Interlocutory proceedings arising out of the same suit, Principle of res judicata can be invoked. But, the appointment of Advocate Commissioner can be filed numerously, unless the previous Commissioner report is scrap. But this case originally the appointment of Advocate Commissioner filed I.A.No.327 of 2007 was rejected by the trial Court and this Court also confirmed the above CRP.No.3390 of 2008. Therefore, the res judicata in this case is not applied. Apart from this, the order passed by the High Court Kolkatta reported in AIR 2000 CALCUTTA 89, it is stated that during the pendency of the appeal second application seeking same relief was filed on same set of facts forming subject matter of first application, not maintainable being hit by principles of res judicata. In the said judgment, the trial Court has allowed the application for appointment of a Receiver, even entertaining the very application in the year 1992. But, in this case, the first application filed by the petitioner was dismissed, but this is the second application and the second application will be maintainable and the petitioner/appellant brought to the notice of the facts that the first application was dismissed by the trial Court and confirmed by this Court.

32.But in an unreported judgment passed in CRP(NPD).No.4370 of 2011, which is stated that taking out of the 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, but in a judgment reported by this Court reported in 2008 (2) TLNJ 93 (Civil) (cited supra), this Court has clearly held 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.

33.But, in my considered opinion, though the suit filed by the first respondent/ plaintiff was decreed, but the first defendant in the suit has filed this appeal and he sought for appointment of Advocate Commissioner in the appeal stage, since the trial Court has passed decree in favour of the first respondent/plaintiff by stating that the plaintiff is entitled for the decree, but this petitioner/appellant has filed the application only to note down the physical features, and the first appellate court certainly would be in a better position to analyse and understand as to whether the appellant/first defendant or the first defendant/plaintiff is speaking the truth with regard to the actualities in the suit property, therefore, in my considered opinion that the application in the appeal stage is maintainable.

34.Altogether the application filed by the petitioner/appellant in the appeal stage, since it is the second application is absolutely maintainable before the appellate Court and the order of the learned Judge dismissing the application is not properly analysing the cases referred above and also not considered that the Court may come to a conclusion that the Court would give any better position to analyse and understand as to whether the appellant or the 1st respondent is speaking the truth with regard to the actualities in the suit property.

35.Therefore, it is just and necessary, the order passed in I.A.No.28 of 2010 in A.S.No.10 of 2009, dated 26.07.2011, is liable to be set aside and in the interest of justice, it is just and necessary for appointing the Advocate Commissioner in this case. Accordingly, a direction is issued to the trial Court for appointment of Advocate Commissioner.

36.In the result:

(a)this civil revision petition is allowed by setting aside the order in I.A.No.28 of 2010 in A.S.No.10 of 2009, dated 26.07.2011, passed by the Sub-Court, Sankari.

(b)the learned first appellate Court namely Sub-Judge, Sankari is directed to appoint an Advocate Commissioner within a period of one week from the date of receipt of a copy of this order and issue direction to the Advocate Commissioner to note down the physical features and to measure S.No.40/1 of Avarangam Palayam Village neither it is acre 1.25 or acre 1.33 and whether S.No.40/1A of Avarangam Palayam Village is in existence and file a report within a period of one month thereafter.

(c)based on the Advocate Commissioners report, the Sub-Court, Sankari is directed to dispose the appeal within a period of two months from the date of filing the report by the Advocate Commissioner, by giving opportunities to both the parties for filing objection, if any, and both the parties are hereby directed to co-operate for early disposal of the Appeal No.10 of 2009.

37.Accordingly, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.

17.01.2017 Index:Yes Internet:Yes Note:Issue order copy on 25.01.2017.

vs To The Subordinate Court, Sankari.

M.V.MURALIDARAN, J.

vs Pre-Delivery order made in CRP(NPD)No.3895 of 2011 and M.P.No.1 of 2011 17.01.2017 http://www.judis.nic.in

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