Vembaiyan vs Sakthivel

S. Palanivelu, J.—The petitioner is the defendant in O.S. No. 22 of 2005, which has been filed by the respondent for specific performance of contract on the strength of an agreement of sale dated 29.01.1990, allegedly executed by this petitioner. Pending the trial of the suit, the petitioner filed an application under Order 26, Rule 9, for appointment of an Advocate Commissioner to inspect the suit property along with a qualified Civil Engineer to assess the value of the suit building, age and the other fixtures in the suit building and file a report.

In the affidavit, he has stated that it is false to allege that by means of the sale agreement, the respondent is trying to grab at the property for a mean sum of Rs. 6,00,000/-, but the house is worth about Rs. 25,00,000/-. Hence, the value of the suit property has to be assessed in order to substantiate the defence raised by this petitioner.

In the counter filed by the respondent, he has alleged that there is no necessity to appoint a commissioner in this case and even in the cross examination the petitioner has admitted that he has sent the sale agreement and in this regard he is not entitled to seek appointment of an Advocate Commissioner.

The Learned Additional District Judge (Fast Track Court No. 1), Thanjavur, dismissed the application by observing that the petitioner's request is not maintainable.

The learned Counsel for the petitioner draws attention of this Court to a decision of this Court in Murugesan v. Jamuna Rani 2008(4) TLNJ 33 (Civil) in which the learned Judge has observed that in a suit for specific performance of contract, in order to prove market value of the property, the Advocate Commissioner cannot be appointed. The facts available in the present case are akin to those in the said case. In that case also, it was alleged by the defendant that a valuable property is sought to be taken by the plaintiff for a meagre sum of Rs. 3,00,000/- alone.

The learned Counsel for the petitioner would submit that the findings rendered by this Court in the above said decision cannot be a ratio decidendi which is per incuriam and it cannot set as a precedent for subsequent decision of this Court. In support of his contention, he garnered support from a decision of the Hon'ble Supreme Court in Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, , in which Their Lordships have held that the contention that earlier decision of the Court cannot be treated as a binding precedent since there is no ratio decidendi as a conclusion without discussion is not tenable and it is void. It is further held that only the decision and its ratio is binding and not every observation found therein.

In Oriental Insurance Co. Ltd. v. Raj Kumari and Ors. (2008) 1 MLJ 501 (SC), the Hon'ble Supreme Court has held as follows:

A decision is a precedent in its own facts, each case presents its own features and it is not everything said by a Judge while giving a judgement that constitutes a precedent that the only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.

It is further held as follows:

According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgement based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgement. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. See: The State of Orissa Vs. Sudhansu Sekhar Misra and Others, and Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, .

In Tvl. N.V.S. Agro Derivatives Vs. The Commercial Tax Officer, , this Court has observed that the order rendered without reference to the statutory provision cannot be considered as a ratio decidendi and the Court cannot read some sentences from here and there to find out the intent and purport of the decision.

The learned Counsel for the respondent also cites a Division Bench decision in The Owners and Parties Interested in the Vessel M.V. "Baltic Confidence" v. The State Tranding Corporation of India Ltd., and Anr. AIR 2000 Cal 91, in which the learned Judges are of the view that in a suit for damages the dispute in relation to quantum of goods damaged cannot be determined in an interlocutory Application.

As far as the circumstances in the present case are concerned, the learned Judge of this Court has adverted to the facts of the case and rendered his findings with reasons in the decision in Murugesan's case (supra) and hence, there is no impediment for this Court to consider the earlier view of this Court in this regard. Added to this, the facts and the claim of the defendant in the above said case are similar to those prevailing in this case.

In view of this fact, the petitioner cannot adduce evidence by seeking appointment of an Advocate Commissioner and the fact of market value of the property has to be established by him independantly before the Court by production of necessary documents and examination of witnesses concerned and he is always at liberty to do the same before the Trial Court. In the light of the above observations, this Court is of the view that the claim of the petitioner is not sustainable and the order passed by the Court below need not be set aside and it is confirmed.

In fine, the Civil Revision Petition is dismissed. No costs.