IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.01.2009 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD) No.1603 of 2006 1. Minor Amid Stanly rep by his father and guardinan Stanly 2. Gracy rep by Power Agent Standly ... Petitioners Respondents 1 and 2 Plaintiffs vs. 1. Lakshmiammal 2. Mani 3. Pritiviraj ... Respondents/Petitioners 3rd and 4th respondents/Defendants 1 to 3 Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 11.08.2006 made in I.A.No.83 of 2006 in O.S.No.30 of 2003 on the file of the District Munsif Court at Udhagamandalam. For Petitioners : Mr.Srinath Sridevan For Respondents : Mr.B.Soundarapandian for R1 No appearance for R2 & R3 O R D E R The petitioners are plaintiffs in O.S.No.30 of 2003 on the file of the District Munsif Court, Udhagamandalam. The suit was filed for permanent injunction against the defendants/respondents with respect to a vacant site. It is stated that the suit is in part-heard stage and at this stage, the first respondent filed an application under Order 26 Rule IX C.P.C. for appointment of an Advocate Commissioner for local inspection of the suit property with the assistance of a qualified Surveyor and submit his Report with a plan. https://hcservices.ecourts.gov.in/hcservices/ 2. In the affidavit, it is stated that the first defendant is entitled to an extent of 5 cents and the plaintiffs have encroached their property and in order to find the possession of the parties and the extent of the properties, a Commissioner has to be appointed and that he has to mention the physical features of the properties. 3. The above said request was resisted by the plaintiffs in the counter. 4. Learned District Munsif has entertained the request of the first respondent by stating that in order to give a clear idea on the contentious issues, the appointment of an Advocate Commissioner is essential. 5. Learned counsel for the petitioners would submit that inasmuch as the first respondent has sought for ascertaining the factum of possession of the properties by an Advocate Commissioner, the petition is not at all maintainable. 6. Conversely, learned counsel for the respondents would submit that when there is a dispute with regard to the extent of the suit property among the parties, the appointment of an Advocate Commissioner is warranted and the Commissioner's Report will clarify the location and extent of the properties and as to who are in actual possession of the properties. 7. As far as the claim of the first respondent is concerned, it is primarily for ascertaining the possession of the parties in the suit property and the adjacent property. The factum of possession cannot be ascertained by the Commissioner, which could be proved by letting in oral evidence by the parties before the court and it is for the court to appreciate the oral and documentary evidence on record and to come out with a finding as to possession. 8. Learned counsel for the petitioners has placed reliance upon two decisions of this court. In 2006 (2) L.W. 159 (Chandrasekaran and 6 others vs. V.Doss Naidu), this court has held that the power conferred on the court to appoint Commissioner to make local inspection is not to collect evidence, but only to obtain evidence, which pertains to a peculiar nature which could be obtained only on spot inspection. In the said judgment, the learned Judge has also referred to earlier decisions of this court and categorically observed that the factum of possession should be proved only by adducing appropriate evidence and not by collecting the evidence by seeking appointment of Advocate Commissioner. In another decision reported in 2008 (3) CTC 597 (K.M.A. Wahab and 5 others vs. Eswaran and another), this court, while dealing with this subject has referred to earlier judgments of this court reported in 2005 (3) MLJ 24 (Jabeen Taj vs. M.Parveen https://hcservices.ecourts.gov.in/hcservices/ Banu) and in 2006 (2) L.W. 159 (Chandrasekaran and 6 others vs. V.Doss Naidu) and culled out the portions available in the judgments, which go to the effect that an Advocate Commissioner could be appointed only when the court is satisfied that on the materials available on record, the party is not able to produce the desired evidence, the court may assist the party to appoint the Advocate-Commissioner to obtain the evidence. It is further stated therein that as regards possession, such aspect could be proved by the parties by producing necessary documents. 9. Learned counsel for the respondents garnered support from a ruling of this court in 2005 (3) MLJ 525 (Sivagurunathan vs. Ramalingam and others), in which, it is held that when the location of the plaintiff's property and the extent is denied, Commissioner ought to have been appointed for effectively adjudicating the dispute and the Report of the Advocate Commissioner and the plan drawn to scale would considerably reduce the oral evidence which aspect was not taken into consideration by the lower Court. 10. There is a candid distinction between the aspects, i.e. to pin down the location of the properties of parties when there is real dispute with regard to the extent and ascertaining the possession of the parties in the properties. As far as the former aspect is concerned, the Commissioner could be appointed, whereas, for the circumstances warranting the consideration of the later aspect, the Commissioner cannot be appointed. The facts in this case clearly go to show that the Commissioner is sought to be appointed to verify the possession of the parties, which is not permissible in law. 11. In view of the consistent opinion rendered by this court, it is to be held that the petitioners are not eligible to get the relief of appointment of an Advocate Commissioner and their claim has to be reversed. In such view of this matter, the order under challenge passed by the court below suffers from infirmity, which needs interference at the hands of this court and it is accordingly set aside. In fine, the Civil Revision Petition is allowed. No costs. Consequently, connected M.P.No.1 of 2006 is closed. Abe Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To The District Munsif Court, Udhagamandalam. + 1 cc to Mr. Srinath Sridevan, Advocate, SR No.1940 + 1 cc to Mr. B. Soundarapandian, Advocate, SR No.1835 Order in C.R.P.(PD) No.1603 of 2006 BV(CO) SR/29.1.2009 https://hcservices.ecourts.gov.in/hcservices/