The appointment of an Advocate Commissioner for local investigation should consider the necessity and should not be used for collecting evidence.

This Civil Revision Petition is filed by the 1st defendant against the order dated 24. 2009 passed in IA.No.98/2009 in OS.No.54/2009 by the learned II Additional Sub Judge, Nagercoil.

2. The 1st respondent/plaintiff has filed the above said suit for declaration of plaintiffs title and recovery of possession of the plaint schedule property from the defendants and to direct the 1st defendant to pay the arrears of licence amount of Rs.90,000/-for the usage of the schedule mentioned property with 12% interest per annum. Pending the suit, the 1st respondent has filed the said application for issuance of commission for local investigation of the schedule mentioned property in relation to certain points stated by the 1st respondent in the said application. The allegations made by the 1st respondent is that the petitioner has annexed certain portion of land with the property of the petitioner on the western side and issuance of commission is filed to segregate the annexed portion from the petitioners possession and for mesne profits for the usage of the disputed portion.

3. Strangely, though the court below has observed in its order that a commission cannot be issued to separate the schedule mentioned property, to assess the mesne profits and to fix the rent for the building, however, it appointed an Advocate Commissioner for the purposes as required by the 1st respondent. Admittedly, the appointment of the Advocate Commissioner was without even notice to the petitioner. Though it is not obligatory on the court to issue notice to the other side before issuing commission, but natural justice requires that such an order should not be passed without notice to one of the parties.

4. In case of this nature, where the dispute between the parties relates to the determination of question of encroachment made by the other party, it is necessary that the other party should be given notice and allow him to put forth his defence before issuing a commission to visit the suit property and to make even the local investigation. It is rightly pointed out by the learned counsel for the petitioner that the appointment of an Advocate Commissioner cannot be utilized for the purpose of gathering or collecting evidence by other party in any proceedings.

5. The learned counsel for the petitioner placed reliance on the judgment of the Division Bench of this court rendered in the case of K. Mariappan and five Others Vs. Chennaivazh Nadrgal Sangam and three Others [1996-I-CTC-148] and contended that there cannot be a commission for noting down the physical features as set out in the petition filed by the 1st respondent in his petition and the Advocate Commissioner cannot divide the property and there is no necessity or justification to appoint an Advocate Commissioner for the said purpose.

6. The points to be noted by the Advocate Commissioner have been stated in the petition filed by the 1st respondent, which is extracted below for easy reference:-

"1. To identify and separate the schedule property from the I defendant property on the western side with the assistance of Taluk Surveyor, Agasteeswaram Taluk at Nagercoil.

2. To note the natue of the building in the schedule property and the business conducted there in and to assess the mesne profits for the building in usage.

3. To note the incumbents in the building in the schedule property and their utilisation of the said building.

4. To fix the rent of the building through the assistance of Assistant Engineer, PWD (Building) at Nagercoil.

5. To note such other points as the plaintiff requires at the time of commission visit."

The above said features cannot be noted down by the Advocate Commissioner, as it would amount to collection of evidence in favour of one party.

7. This court in the case of Rangasamy Vs. The Superintending Engineer, TNEB, Mettur Electricity System, Mettur Dam, Salem District and others [2006-5-CTC-501] has held that the object of the local investigation under Order