R. Sulochana vs C.S. Chinnasamakkal and Others

R. Banumathi, J.—This Revision is directed against the order of the Subordinate Judge, Tirupattur, made in I.A. No. 76 of 2004 in I.A. No.

142 of 2001 in O.S. No. 94 of 2001, dated 25-02-2004, dismissing the Petition filed by the Advocate Commissioner to receive his Report and

Plan.

An interesting question arises in this Revision -- can the Advocate Commissioner could file the Application to reopen the earlier Commission

Petition, which has been closed and requesting the Court to receive his Report and Plan.

3.The relevant facts for disposal of this Revision Petition could briefly be stated thus:-

a) O.S. No. 94 of 2001:- This Suit had been filed by the Plaintiff against her mother -- the First Defendant and brothers and sisters for partition of

her 1/3rd share. At the time of filing the Suit, I.A. No. 142 of 2001 was filed by the Plaintiff seeking for Appointment of an Advocate

Commissioner. The Court appointed the Advocate Commissioner - Mr. Suresh Kumar (Petitioner in I.A. No. 76 of 2004) issuing Warrant to him

to note down the physical features of the suit property and to file his Report and Plan, after giving Notice to both the parties. The Commission

Warrant had been received by the Advocate Commissioner. The Advocate Commissioner was directed to file his Report on or before 18-06-

2001. Thereafter, the case was adjourned for more than thirty hearings. Despite such number of adjournments, the Commissioner had not filed his

Report till 30-06-2003. Hence, the Court closed the Commission Petition in I.A. No. 142 of 2001. Even thereafter the Commissioner had not

filed his Report and Plan. Only in February 2004, the Commissioner had filed I.A. No. 76 of 2004, requesting the Court to reopen the Petition in

I.A. No. 142 of 2001 and to receive his Report and Plan.

b) Upon consideration of the averments in the affidavit and the non-filing of the Report for a long period, the learned Subordinate Judge dismissed

the Application pointing out the number of adjournments and non-representation by the Advocate Commissioner. The learned Subordinate Judge

was of the view that the Practising Advocates, who are appointed as Commissioners in Suits, are duty bound to file the Report within the stipulated

time and that number of cases are pending because of the non-filing of the Commissioners'' Reports. Finding that the Application had been

belatedly filed, the learned Subordinate Judge, dismissed the Application filed by the Advocate Commissioner.

Assailing the impugned order, the Plaintiff has preferred this Revision. The learned counsel for the Revision Petitioner has contended that for the

mistake of the Commissioner, the Revision Petitioner/Plaintiff is not to suffer. In support of his contention, he has placed reliance upon the Full

Bench decision reported in Abdul Rashid Vs. Sri Sitaramji Maharaj Brajman and Others, . It is further submitted that, if I.A. No. 142 of 2001 is

closed without filing of the Report, it would cause serious prejudice to the Plaintiff, who has taken out the Application. It is further submitted that

the Plaintiff would be deprived of valuable evidence, if the Commissioner''s Report is not received. The learned counsel has further contended that

the generalised views regarding the delay in filing the Commissioner''s Report expressed by the trial Court is more generalised, which cannot be

sustained.

The learned counsel for the First Respondent/First Defendant has submitted that the Commissioner had filed the Application only when

D.W.1/First Defendant was examined out of turn (since, she was aged about 85 years). It is further contended that only at that time, the

Commissioner had filed the Application to reopen the Application in I.A. No. 142 of 2001 and to receive his Report. It is further submitted, when

the Plaintiff had not chosen to challenge the order of closing I.A. No. 142 of 2001, it is not open to the Plaintiff to challenge the order of dismissal

of I.A. No. 76 of 2004 at this distant point of time.

In I.A. No. 142 of 2001, when the Commissioner was appointed, he was directed to file his Report on or before 18-06-2001. Under

Or.XXVI R.9 C.P.C. while issuing the Warrant the Court could direct the Advocate Commissioner to make such investigation and to report

thereon to the Court. The Commissioner has to file his report in writing, signed by him, to the Court within the time, if any fixed by the Court or

within reasonable time. As per Or.XXVI R.10 C.P.C., the Report of the Commissioner shall be evidence in the Suit and shall form part of the

record. When the Report and Plan of the Commissioner is evidence in the Suit, the learned Subordinate Judge, has rightly directed the Advocate

Commissioner to file his Report and Plan on or before 18-06-2001. Thereafter, for nearly thirty hearings the Commissioner had not chosen to file

his Report. From the impugned order, it is seen that the Commissioner had neither filed his report nor was there any representation by the

Commissioner.

The Petition in I.A. No. 142 of 2001 was closed on 30-6-2003. Even thereafter, the Commissioner had not chosen to file his report. The First

Defendant was aged about 85 years. Considering her old age, permission was obtained from the Court to record her evidence out of turn. When

the chief-examination of D.W.1 was in part, at that stage on 25-02-2004, the Commissioner had filed an Application in I.A. No. 76 of 2004 to

reopen I.A. No. 142 of 2001 and to receive his report. Along with the Application, the Commissioner had filed his Report and the F.M.B. Plan. In

the supporting affidavit, the Commissioner had stated that due to the non-availability of the Plan, he could not immediately file the Report and after

obtaining the Plan, he has filed his report.

The reason stated by the Advocate Commissioner for non-filing of his Report within the stipulated time or within the reasonable time thereafter,

is not convincing. If really, the Plan was not available to the Commissioner, the Commissioner could have very well filed the Report before the

Court explaining the position. The Commissioner could have very well filed a memo before the Court seeking direction from the Court to the

concerned Revenue Official to produce the Field Measurement Book/Survey Plan. But, the Commissioner had not chosen to do so nor made any

representation before the Court, despite number of hearings - nearly thirty hearings. Considering the conduct of the Advocate Commissioner, the

learned Subordinate Judge, has rightly dismissed the Application, declining to receive the Report.

Placing reliance upon the Full Bench decision reported in Abdul Rashid Vs. Sri Sitaramji Maharaj Brajman and Others, , the learned counsel for

the Revision Petitioner/Plaintiff has submitted that the Plaintiff is not to be allowed to suffer on account of the mistake of the Advocate

Commissioner. It is further submitted that, if the Commissioner''s Report is not received, it would cause serious prejudice to the Plaintiff''s Claim of

partition. This contention does not merit acceptance. If really, the Plaintiff was aggrieved over non-filing of the Commissioner''s Report, it could

have well brought to the notice of the Court at much earlier point of time. But, having not done so, it is not open to the Plaintiff now to contend that

the omission of the Commissioner to file the Report would cause serious prejudice to her. The Suit in O.S. No. 94 of 2001 is only a Suit for

partition. The Commissioner was appointed to note down the physical features. The physical features may not be of much evidentiary value in the

suit for partition. In that view of the matter, the impugned order does not suffer from any material irregularity warranting interference.

By the common experience in the Court, the learned Subordinate Judge, has expressed a general view that many cases are pending on account

of non-filing of the Commissioners'' Reports by the large number of Advocate Commissioners. It cannot be said that the learned Subordinate

Judge has exceeded his limit in expressing such a view. Taking note of the general situations in the Court, the Court was well within its limits in

expressing such a view. The impugned order cannot be interfered with on account of such view expressed by the learned Subordinate Judge.

Considering the conduct of the Commissioner and the stage in which the Report was filed, the learned Subordinate Judge, has rightly dismissed the

Application in I.A. No. 76 of 2004. The impugned order does not suffer from any error or serious infirmity warranting interference. This Revision

has no merits and is bound to fail.

For the reasons stated above, the order of the Subordinate Judge, Tirupattur, made in I.A. No. 76 of 2004 in I.A. No. 142 of 2001 in O.S.

No. 94 of 2001, dated 25-02-2004, is confirmed and this Revision Petition is dismissed. Consequently, the connected C.M.P. No. 6588 of 2004

is also dismissed. Considering the age of the First Respondent, the Trial Court is directed to dispose of the Suit in O.S. No. 94 of 2001 within a

period of six months from the date of receipt of a copy of this order. In the circumstances of the case, there is no order as to costs.