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2013 Supreme(Mad) 982
HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, J.
Marappa Gounder & Another
Versus
Appusamy
C.R.P.(PD) No. 1190 of 2011 & M.P. No. 1 of 2011
Decided On: 18-02-2013
Advocate Appeared:
For the Petitioners:P. Jagadeesan, Advocate.
For the Respondent:N. Manokaran, Advocate.
The judicial discretion in appointing an Advocate Commissioner and the non-binding nature of the Commissioner's report were central to the Court's decision.
Headnote:
Advocate Commissioner - Disputed suit cart track - I.A.No.1604 of 2010 in O.S.No.301 of 2010 - Summary of Acts and Sections: Appointment of Advocate Commissioner, Judicial discretion in appointing Advocate Commissioner, Commissioner's report as aid to the Court, Court's discretion in accepting Commissioner's report
Fact of the Case:
The Petitioners/Defendants filed a Civil Revision Petition against the order of the trial Court appointing an Advocate Commissioner to inspect the disputed suit cart track and the connected property. The Petitioners contended that the suit cart track was meant only for joint family properties and the Respondent/Plaintiff had no right to transport anything from a specific land through the cart track. The Respondent/Plaintiff sought relief of declaration of his right in the cart track and for permanent injunction.
Finding of the Court:
The trial Court's appointment of the Advocate Commissioner was upheld by the Court, which held that the trial Court had not committed any impropriety or illegality in allowing the application. The Court emphasized the judicial discretion in appointing an Advocate Commissioner and the non-binding nature of the Commissioner's report. The parties were granted liberty to raise legal pleas during the trial of the main suit.
Issues: Dispute over the usage of the suit cart track, entitlement of the parties to use the cart track, appointment of Advocate Commissioner, right of way in the cart track, relief sought by the Respondent/Plaintiff
Ratio Decidendi: The Court emphasized the trial Court's exercise of judicial discretion in appointing the Advocate Commissioner and the non-binding nature of the Commissioner's report. The Court also highlighted the parties' liberty to raise legal pleas during the trial of the main suit.
Final Decision: The Civil Revision Petition was dismissed, confirming the trial Court's order in appointing the Advocate Commissioner. The parties were granted liberty to raise legal pleas during the trial of the main suit.
1. The Petitioners/Defendants have filed the present Civil Revision Petition as against the order dated 21.02.2011 in I.A.No.1604 of 2010 in O.S.No.301 of 2010 passed by the Learned District Munsif, Sankari.
2. The Learned District Munsif, Sankari, while passing orders in I.A.No.1604 of 2010 in O.S.No.301 of 2010 in Paragraph 8 has observed that 'since it is the contention raised by the Respondents (Defendants/Revision Petitioners) that the suit cart track is meant only for the use of joint family properties and it is not open to the Petitioner (Respondent/Plaintiff/Petitioner) to transport anything from S.No.202/2C through the suit cart track, there is nothing wrong in directing the Advocate Commissioner to note down the physical features of S.No.202/2C also, which is connected with the disputed suit cart track' and resultantly, allowed the application by appointing Thiru.N.Chandaran, Advocate Commissioner and directed him to visit the suit property as well as S.No.202/2C, after issuance of notice to both the parties, note down the existing physical features and to file his Report along with a rough sketch by 05.04.2011.
3. Also, the remuneration for the Advocate Commissioner has been at Rs.1,500/- to be paid by the Respondent (Petitioner/Plaintiff), directly to the Commissioner and further directed the application to be called on 05.04.2011.
4. It transpires that the Revision Petitioners/Petitioners (Defendants) have filed CRP.PD.No.1190 of 2011, being dissatisfied with the order of appointment of Advocate Commissioner made by the trial Court in I.A.No.1604 of 2010 in O.S.No.301 of 2010 on 21.02.2011 and this Court, in M.P.No.1 of 2011 has passed the following order:
“Notice of motion returnable in four weeks. Private Notice is also permitted. Interim stay till then.”
5. The Learned Counsel for the Petitioners/Defendants contends that the trial Court has committed an error in allowing the I.A.No.1604 of 2010 in O.S.No.301 of 2010 on 21.02.2011, by appointing an Advocate Commissioner without properly considering the factual and attendant circumstances of the case in a proper and real perspective.
6. According to the Learned Counsel for the Petitioners/Defendants, the trial Court has failed to appreciate an important fact that the suit cart track ABCDE is available only for the joint family properties, which are divided between the Plaintiff and the First Defendant. Furthermore, the crystal clear stand taken by the Petitioners/ Defendants is that the Respondent/Plaintiff has no right to use the cart track in respect of the land in S.No.202/2C.
7. Yet another plea taken on behalf of the Petitioners/Defendants is that the land in S.No.202/2C has been purchased by the Respondent/Plaintiff's son and subsequently, it has been settled in favour of the Respondent/Plaintiff. Indeed, the said purchase is a separate land and therefore, the suit cart track cannot be utilised for any purpose of the suit land in S.No.202/2C.
8. Lastly, it is the submission of the Learned Counsel for the Petitioners/Defendants that it is for the Respondent/Plaintiff to prove his right in respect of the cart track by way of independent evidence and it is not open to the Respondent/Plaintiff to indulge in either fishing expedition or to such for an evidence or to gather or collect evidence, besides the land in S.No.202/2C is not a subject matter of 'Lis' between the parties.
9. Per contra, it is the contention of the Learned Counsel for the Respondent/Plaintiff that because of the adamant attitude of the Revision Petitioners/Defendants, the agricultural products are likely to be wasted in which event he will be serious hardship and loss and as a matter of fact, the Respondent/Plaintiff has got every right to use the suit cart track for all the purposes and more importantly, there is no alternative way to him except the suit cart track.
10. The Learned counsel for the Respondent/Plaintiff brings it to the notice of this Court that the Petitione
