P.K. Chandran vs Paikkattu Kavil Vasudevan

This Original Petition is filed seeking to call for the records leading to Exhibit P8 order dated 06.03.2017 rendered by the Additional Munsiff Court-II, Kozhikode, in I.A.No.238 of 2017 in O.S.No.309 of 2014 and to set aside the same. The petitioner is the 25^th respondent in the said I.A. and the 25^th defendant in the said O.S.

O.S.No.309 of 2014 was filed by the 1^st respondent claiming 1/20^th share in A and B schedule properties excluding the way and the properties set apart for the purpose of a temple. A declaration that the Sangham which is formed in the name of the 25^th defendant, does not have legal sanctity alongwith a prayer for permanent prohibitory injunction restraining the 25^th defendant from disturbing the peaceful possession of the plaintiff and defendants 1 to 24 were sought in the suit. A further prayer to frame a scheme in respect of the temple had also been sought.

Petitioner/25^th defendant filed the written statement in the suit, and thereafter an application numbered as I.A.No.238 of 2017 was filed by the 1^st respondent/plaintiff seeking to appoint an Advocate Commissioner to inspect the plaint schedule properties. The petitioner raised an objection to the appointment of the Commissioner inter alia stating that in the previous suits between the parties, to the same subject matter a Commissioner had already inspected the property and had filed a report along with a plan. It was thus contended that appointing another Commissioner in this suit as sought in the I.A., was unnecessary and would only protract the matter.

The learned Additional Munsiff, after hearing the parties, allowed the I.A. holding that though the I.A. had been filed subsequent to the filing of the written statement of the 25^th defendant, since an assessment of the evidence and the plan showing the lie and nature of the property is required while adjudicating the dispute, a Commissioner’s inspection and report are relevant and necessary. After taking note of the objection of the petitioner/25^th defendant that in previous suits between the parties, a Commissioner had inspected the property and filed a report and plan, and hence, it was unnecessary to bring another report and plan, it was concluded by the learned Munsiff that since the prayer itself is to demarcate the property of the temple situated in A and B schedule and to demarcate the way in the C schedule, appointment of a Commissioner was necessary and justified. The learned Munsiff thus allowed the I.A. and appointed an Advocate Commissioner. Consequential directions were also issued vide the same order. The said order of the learned Munsiff is challenged in this O.P.(C).

Heard Sri.Saneesh Kumar K., Advocate for the petitioner and Sri.Salil Narayanan, Advocate for the 1^st respondent.

The learned counsel for the petitioner submits that Exhibit P8 order impugned in this O.P.(C) is unsustainable in law, as, according to the learned counsel, no purpose would be served by appointing an Advocate Commissioner. Reports regarding the nature of the properties are, according to the learned counsel, already available in other concluded suits as revealed from Exhibits P3 and P5. The reasoning of the learned Munsiff that the appointment of a Commissioner is necessary in view of the nature of the prayers sought in the suit is unjustifiable as according to the learned counsel, the relevant aspects could as well be ascertained from the Commissioner report already available on file. It is submitted that the Commission Application (Exhibit P6) leading to Exhibit P8 order impugned in this O.P.(C), was vague and unclear with regard to the properties to be identified and the learned Munsiff had overlooked the fact that the vital data necessary for the inspection of the plaint schedule properties had not been provided. Any inspection without such factual details, it is contended, would be a futile exercise and an abuse of process of law. It is further highlighted that the Commission Application does not seek the assistance of a Surveyor for demarcating the plaint schedule properties, and the same by itself would reveal that Exhibit P8 order if sustained, would result in abuse of process. The learned counsel for the petitioner thus submits that the Commission Application leading to the impugned order lacked bonafides and ought to have been dismissed on the said count itself. It is prayed that the impugned order allowing the Commission Application may hence be set aside and the O.P.(C) may be allowed as prayed for.

Per contra, the learned counsel for the 1^st respondent would submit that Exhibit P8 order had been rendered in accordance with law and does not merit any interference. It is submitted that as has been rightly concluded by the learned Munsiff in the impugned order, for a proper appreciation of the prayers made in the suit and for disposal of the same, an inspection and report by the Commissioner of the plaint schedule properties was relevant and necessary. The learned Munsiff had allowed the Commission Application after due consideration of the necessity of procuring the factual information through a Commissioner’s report and no interference was warranted. No detriment would be caused to the petitioner if the Commissioner visits and submits a report and nothing has been put forth either before the court below or before this Court to show that any inconvenience or prejudice would be caused to the petitioner if a Commissioner report is filed as directed in Exhibit P8 order. Reliance is placed on the dictum laid down by the Hon’ble Supreme Court in Haryana Waqf Board v. Shanti Sarup and others [(2008) 8 SCC 671] and on the judgment rendered by the Hon’ble High Court of Madras in Tejraj Sarammal v. Bajranglal Damani [(CDJ 2004 MHC 947)].

I have heard both parties and have considered the contentions put forth. Exhibit P8 order impugned in this O.P.(C) was rendered in an application filed invoking Order 26 Rule 9 of the Code of the Code of Civil Procedure, 1908 (C.P.C.). Section 75 of the C.P.C. empowers the court to issue Commissions inter alia to make local investigations. Order 26 Rule 9 of the C.P.C. stipulates that 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, 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. Thus a court can appoint a Court Commissioner to elucidate upon any matter in controversy if it deems it necessary, fit and proper. The Hon’ble Supreme Court in Haryana Waqf Board (supra) has held that whether a Commissioner is to be appointed is a question that the court has to answer based on the facts and circumstances of the case at hand. On the facts of the said case, the law on the point was elucidated by the Hon’ble Supreme Court as follows:

The reliance placed by the learned counsel for the respondent to the dictum in Tejraj Sarammal (supra) is also apposite. The Hon’ble High Court of Madras had in the said case held on the same point as follows:

Similarly, the reliance on the dictum laid down in Pandit Vithal Landage v. Vishnu Govind Pawar [Writ Petition No.5158 of 2024 : Bombay High Court] is also not out of place. In the said case, it has been held as below:

(emphasis supplied)

It is thus trite that while adjudicating an application under Order 26 Rule 9 of the C.P.C., if the court is satisfied that a local investigation is necessary or expedient for the purpose of clarifying or elucidating any matter in controversy between the parties, it is empowered to issue a Commission to such person as it considers appropriate, directing such Commissioner to conduct the local investigation and submit a report thereon before the Court.

It is clear from the above that law thus draws a clear line in the matter of appointment of Commissioners under Order 26 Rule 9 of the C.P.C. The provision exists to illuminate disputed facts to the court, so as to enable a just disposal of the subject in issue. The purpose of such an appointment is not to enable a party to build his case through a fishing expedition. A Commission cannot be sought to be appointed to fish for evidence supporting the case put forth by a party to the lis. A prayer for appointing a Commissioner to inspect and report back to the court for the purpose of elucidating any matter in dispute alone would be justified and the necessity to allow the prayer will have to be decided based on the facts and circumstances of each case.

As regards the case at hand, it is the specific conclusion of the learned Munsiff in Exhibit P8 order impugned that since the prayer is to demarcate the property of Bhayankavu Temple situated in A and B schedule and to demarcate way to C schedule, a Commissioner is to be appointed to report back to the court on the relevant facts necessary in the said respect. The learned Munsiff has resonated that in order to assess the evidence and the plan showing the nature and lie of the property an inspection by the Commissioner is necessary. The question of demarcation of the boundaries of the land had thus squarely arisen for determination. The learned Munsiff had after a due appreciation of the contentions put forth in the light of the relief sought in the suit, concluded that in order to assess the evidence, a plan showing the lie and nature of the property is necessary, especially taking note of the reliefs sought in the plaint. No reason has been put forth by the petitioner in the objection filed before the learned Munsiff in the I.A. to substantiate the contention that a Commissioner’s report would be unnecessary. Since the learned Munsiff had appreciated the matter including the objections in the counter affidavit and had for valid reasons concluded that the nature of the relief sought in the plaint required a Commissioner report, it is not for this Court to sit on appeal in the said appreciation made by the learned Munsiff.

In view of the above, I find no reason to interfere with Exhibit P8 order. The O.P.(C) is only to be dismissed. Needless to add all the contentions put forth by the petitioner are left open and the observations made hereinabove shall not influence any decision to be taken in the matter.