M.V. Rathinam and R. Jayalakshmi vs Padmadevi

P. Jyothimani, J.—The defendants in the suit are the Revision Petitioners. The plaintiff filed the suit for declaration in respect of a cart track

termed as ABC in the suit plaint and sketch annexed thereto. According to her, it is the exclusive cart track to be used by her and her family

members to enjoy the properties comprised in Survey No. 1167/3 Punchai lands to an extent of 6.07 as well as survey No. 1139 to an extent of

2.88 acres on the western side of the total extent of 21.18 acres. Pending the suit, the second defendant, who is the second petitioner in the

revision has filed a written statement denying the existence of such cart track as an exclusive cart track used by the plaintiff. But, also stating that

there is an alternate cart track available to the plaintiff on the northern side of survey No. 1167/3 adjacent to the property of the plaintiff.

The plaintiff has filed I.A. No. 1658/2004 pending the said suit in O.S. No. 905/2007 in which an Advocate Commissioner was appointed,

who after visiting the suit property has filed an original report bringing out the physical features of the suit property alongwith the sketch. After the

defendants/petitioners have entered appearance, there was another application filed by the plaintiff in I.A. No. 2091/2004 for reissuing of the

warrant to the Advocate Commissioner to note down the physical features. The said application was ordered by the Trial Court and the

Commissioner was reissued. Accordingly, the learned Advocate Commissioner has visited the suit property once again and filed his second report

stating about the actual position of the cart track with an observation that the said cart track joins the properties belonging to the plaintiff. He has

also stated in the second report that he has observed the traces of cart in an alternate place that has also been pointed out by the Advocate

Commissioner in his second report. Thereafter, the defendants have filed the written statement.

In the Written Statement, the defendants have stated that an alternate passage is available to the plaintiff. On that basis, the plaintiff have filed the

third application in I.A. No. 1098/2007 for appointment of Advocate Commissioner, which is stated to have been subsequently corrected as

reissue of the same Commissioner to note down the physical features of the suit property. In the affidavit filed in support of the said petition, the

plaintiff/petitioner has stated that the suit cart track was visited by the Advocate Commissioner earlier during summer and due to the monsoon, the

alternate cart track which has been stated by the defendant has been submerged by water and actually there is no alternate cart track available for

the usage of the plaintiff and it is to find out the said position, the said application for reissue of Advocate Commissioner filed.

According to the petitioners in a changed circumstances, an application under Order 26 Rule 9 CPC came to be filed for reissuing of the

Advocate Commissioner. The said application filed by the plaintiff/respondent was allowed by the Trial Court as against which the defendants have

filed the Revision Petition under Article 227 of the Constitution of India.

The learned Counsel for the petitioners would submit that the very purpose of the respondent in filing consequent petitions for reissuing of

Advocate Commissioner is only with an intention to create an evidence which is not permissible in the eye of law. It is further case that it was after

the PW.1 and PW.2 were examined and having realised that the plaintiff has no case in respect of the cart track as per the suit, The present

application has been filed for a third time which is with a malafide intention and also to create an evidence in favour of the plaintiff. His further case

is that the plaintiff has to prove his case based on his pleadings and merely because the defendants have stated in the written statement that an

alternate passage is available, that cannot be a ground for reissuing the Advocate Commissioner. Such reissue only would amount to using the

Commissioner''s Report as a document for the plaintiff. The appointment of Advocate Commissioner to note down the physical features under

Order 26 Rule 9 of CPC is nor to create evidence for the parties to the suit.

On the other hand the learned Counsel for respondent would submit that by reissuing of the Advocate Commissioner, no prejudice would be

caused to the defendants. He would vehemently contend that it is only due to the statement of the defendants specifically stated in the written

statement stating that an alternate cart track is available to the plaintiff and therefore, the plaintiff has no other go than filing the application for

reissuing the Commissioner for the purpose of eliciting the true facts in order to assist the Court to come to a correct conclusion.

The learned Trial Judge, while allowing the application has relied upon the judgment of this Court reported in 2006 4 L.W. 178 (T.K.

Krishnamoorthy v. Tamil Nadu Water and Drainage Board and Anr.), wherein this Court has categorically held that the finding of the Advocate

Commissioner can never be the basis for deciding the suit by the Civil Court and the Advocate Commissioner cannot be appointed for the purpose

of gathering an evidence to prove the case of the party to the suit in the following words:

Report of the Advocate Commissioner alone can never be the basis for deciding the suit as Commissioner should not be appointed to gather

evidence to prove the case of the parties. Parties should prove their case by themselves letting in legally acceptable evidence; Report of the

Commissioner can only aid the court in evaluating the evidence to come to a just conclusion.

However, the learned Trial Judge has allowed the application on the basis that the said judgment is not applicable on the facts of the case and

also on the ground that by reissuing the commission warrant, no prejudice or material loss will be caused to the parties. The contention raised by

the learned Counsel for respondent placing reliance on judgments of this Court in A. Nagarajan Vs. A. Madhanakumar, to the effect that the

report of the Advocate Commissioner is only a Ministerial act and the commissioner is not performing a judicial function. There has been no

dispute about the said proposition. But, on the otherhand, it can never be said that an order of appointment of Advocate Commissioner cannot be

interfered with by the High Court, while exercising supervisory jurisdiction under Article 227 of the Constitution of India. It is well settled that in

cases, where there is illegallity on the face of it or the order of the Court below is against the basic principles of law, the High Court has jurisdiction

under Article 227 of Constitution of India to correct the said errors. On the factual situation as elicited above in this case, it is clear that when once

plaintiff files a suit for a declaration in respect of cart track, it is for him to prove the existence of the cart track. Even after the Commissioner was

directed to inspect the spot and filed a report on two occasions, it is not known as to how the Commissioner should be reissued for the purpose of

finding out whether there is an alternate cart track available for the plaintiff.

The contention raised on behalf of the respondent that the said application is necessiated only because of the reason that the defendants in the

Written Statement have raised about the existence of an alternate pathway cannot be a ground for reissuing a commissioner to find out whether

there is an alternate pathway or whether the same is submerged or useful for the plaintiff. The conduct of the plaintiff shows that the idea is to

create and gather evidence which is not permissible in law as found by this Court in Mr. D. Kuttiyappan and Others Vs. Meenakshiammal

Polytechnic Unit of Meenakshiammal Trust, . Unless a bonafide is made out, the question of appointment of Advocate Commissioner repeatedly

will not yield any purpose and such indiscriminate appointment of Advocate Commissioner one after another, will only lead to unhealthy practice of

making applications by the parties till the party gets favourable reports. The present case exactly comes within the purview of the decision of this

Court in the above said judgment.

Unfortunately, the learned Trial Judge having relied upon the judgment of this Court wherein it has been stated that the Advocate

Commissioner cannot be appointed for gathering evidence, nevertheless has gone beyond the said judgment and reissued the commissioner only

for the reason that no prejudice or no material loss would be caused to the defendants. The reasoning given by the learned Trial Judge for reissuing

of the commissioner is not legally sustainable and therefore, the order of the learned Trial Judge is set aside. The revision stands allowed.

Consequently, connected Miscellaneous Petition is closed. No costs.