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2016 Supreme(Mad) 1399
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V.M. VELUMANI, J.
Kamariya Begam – Petitioner
Versus
Nagalakshmi & Another – Respondents
C.R.P.(MD).Nos. 2120 & 2121 of 2015 (PD) & M.P.(MD).No. 1 of 2015
Decided on : 10-03-2016
For the Petitioner:J.M. Hassanul Bazari, Advocate.
For the Respondents:V. Sitharanjandas, Advocate.
Significant delay in raising objections to a Commissioner's report may be deemed untenable and devoid of merits, leading to dismissal of related applications.
Headnote:
Advocate Commissioner - Suit Property - The court dismissed the applications for reopening the suit and reissuing the warrant of commission to the Advocate Commissioner, finding that the petitioner's delay of 7 years in raising objections to the Commissioner's report was untenable and devoid of merits.
Fact of the Case:
The petitioner filed a suit for declaration and permanent injunction. The respondents filed for appointment of an Advocate Commissioner to inspect the suit property. After completion of evidence, the petitioner filed applications to reopen the suit and reissue the warrant of commission to the Advocate Commissioner, alleging improper measurement of the land and the surveyor's qualifications.
Finding of the Court:
The court found that the petitioner's delay in raising objections to the Commissioner's report after 7 years was untenable and devoid of merits. The applications were dismissed, and the court held that there was no infirmity, illegality, or irregularity in the orders passed by the Subordinate Judge.
Issues: Delay in raising objections to the Commissioner's report, validity of applications to reopen the suit and reissue the warrant of commission.
Ratio Decidendi: The court's decision was influenced by the petitioner's significant delay in raising objections to the Commissioner's report, which was deemed untenable and devoid of merits.
Final Decision: The civil revision petitions were dismissed, and no costs were awarded. The connected miscellaneous petition was closed.
The issue involved in both the C.R.Ps are interlinked and both the C.R.Ps are disposed by this common order.
2. The petitioner herein is the plaintiff and the respondents are the defendants in the suit in O.S.No.4 of 2007. The petitioner filed suit for declaration and permanent injunction. The respondents filed I.A.No.6 of 2008 for appointment of an Advocate Commissioner to inspect and note down the physical features of the suit property with the help of qualified surveyor. An Advocate Commissioner was appointed, who inspected the suit property on 16.02.2008 with surveyor and filed his report and plan on 11.04.2008.
3. The Trial commenced and evidence of both parties were completed and the suit was posted for arguments. At the time of preparing for arguments, it was found out that the earlier Commissioner did not measure the southern side of the suit property, which is only two feet. Due to which, the petitioner filed I.A.Nos.152 and 153 of 2015 for reopening the suit and to reissue the warrant of commission to the Advocate Commissioner to inspect and measure the suit property with the help of Government Surveyor.
4. The respondents filed counter affidavit and contended that already an Advocate Commissioner had been appointed and inspected the property with the help of surveyor and filed his report with plan. The petitioner did not file any objection to the said report. After evidence has been closed by both the parties and when the suit is posted for arguments, the petitioner filed the applications only with a view to drag on the proceedings. The applications are devoid of merits and prayed for dismissal of the said Interlocutory Applications.
5. The learned Judge considering the facts and materials on records, dismissed both the applications. Against the said order of dismissal, the present Civil Revision Petitions are filed.
6. The learned counsel for the petitioner contended that the learned Judge failed to exercise the jurisdiction conferred on him. In order to prove the petitioner's case, reopening of the case is necessary. The Court has inherent power to reopen and reissue the warrant to the Advocate Commissioner to do justice. The reasons for reissue of warrant of commission, is to clarify the earlier report of the Advocate Commissioner. There is no bar to reissue of warrant of commission. Only another Commissioner cannot be appointed without setting aside the earlier report of the Advocate Commissioner.
7. The learned counsel for the respondents submitted that the petitioner has not filed any objection to the Commissioner's report. It is not correct to contend that the petitioner came to know the defect in advocate commissioner's report only, when the counsel was preparing for arguments. Witnesses were examined and cross-examined and therefore, the said contention is without any basis. The petitioner has filed the applications only to drag on the proceedings.
8. I have heard Mr.J.M.Hassanul Bazari, learned counsel appearing for the petitioner and Mr.V.Sitharanjandas, learned counsel appearing for the respondents and carefully perused the entire materials on record.
9. From the materials, it is seen that the suit was filed in January 2007. The petitioner filed written statement in March 2007. The Advocate Commissioner was appointed in the year 2008. He inspected the property on 16.02.2008 and measured the suit property with the help of surveyor and filed his report on 11.04.2008. The petitioner did not file any objection to the Commissioner's report. After 7 years, after completion of evidence, the petitioner has come out with the applications alleging that the Advocate Commissioner did not properly measure the land and the surveyor, who assisted the commissioner is only a private surveyor and not a Government Surveyor. The reason that the petitioner came to know of the defect in the Commissioner's report only at the time of preparing for arguments is untenable and is devoid of merits.
10. The learned Judge considered al
