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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. VADAMALAI, J.
Z. 857 Thirubuvanam Co-operative House Construction Society Ltd., By its President Krishnakumar, Thirubuvanam & Another – Appellants
Versus
Latha – Respondent
C.R.P (PD)(MD). No. 448 of 2018 & C.M.P (MD) No. 1971 of 2018
Decided On : 25-07-2023
Advocate Commissioner - Bare Injunction - Order 26 Rule 9 of the Civil Procedure Code, 1908 - 2006 - 2 Law Weekly 159, 2006 (5) CTC 494, (2006) 4 MLJ 626, AIR 1988 Orissa 248, Order passed in C.R.P.No.3760 of 2014 of Andhra High Court, AIR 2005 AP 529 - The court discussed the appointment of an Advocate Commissioner in a suit for bare injunction and the relevance of Order 26 Rule 9 of the Civil Procedure Code, highlighting that the report of the Commissioner alone can never be the basis for deciding the suit and could only aid the Court in evaluating the evidence to come to a conclusion. The appointment of Advocate Commissioner was found to be for identification and measurement of the property, and the Court is empowered to make an inspection of property which would not cause any prejudice to the party and would assist the Court for proper adjudication.
Fact of the Case:
The revision petitioners are the defendants in a suit for bare injunction. The revision respondent filed a petition for appointment of an Advocate/Commissioner to note down the physical features of the suit properties. The revision petitioners objected to the petition, leading to the Civil Revision Petition. The revision petitioners argued that the appointment of Commissioner for making enquiry about the factum of possession of the property in dispute is improper and that the possession of property has to be adjudicated only by oral and documentary evidence.
Finding of the Court:
The Court found that the appointment of Advocate Commissioner was for identification and measurement of the property, and the report of the Commissioner alone can never be the basis for deciding the suit. The Court also noted that the appointment of Advocate Commissioner would not cause any prejudice to the party and would assist the Court for proper adjudication.
Issues: The main issue was whether the appointment of an Advocate Commissioner for identification and measurement of the property in a suit for bare injunction was proper.
Ratio Decidendi: The Court held that there is no bar on appointment of Advocate Commissioner in a suit for injunction and the report of the Commissioner alone can never be the basis for deciding the suit. The appointment of Advocate Commissioner was found to be for identification and measurement of the property, and the Court is empowered to make an inspection of property which would not cause any prejudice to the party and would assist the Court for proper adjudication.
Final Decision: The Civil Revision Petition was dismissed, and the appointment of Advocate Commissioner for identification and measurement of the property in a suit for bare injunction was upheld.
JUDGMENT
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair order and decreetal order dated 12.12.2017 made in I.A.No.98 of 2017 in O.S.No.35 of 2017 on the file of the Principal District Munsif, Kumbakonam.)
1. This Civil Revision Petition is filed against the fair order and decreetal order passed in I.A.No.98 of 2017 in O.S.No.35 of 2017 on the file of the District Munsif Court, Kumbakonam.
2. The brief facts of the case:
The revision petitioners are the defendants in O.S.No.35 of 2017 on the file of the District Munsif Court, Kumbakonam. The revision respondent has filed a main suit for bare injunction restraining them from interfering with her peaceful possession of the suit property. The revision respondent has filed a petition in I.A.No.98 of 2017 for appointment of an Advocate/Commissioner to note down the physical features of the suit properties. The revision petitioners/defendants objected the said petition. After hearing both, the Trial Court has allowed the petition in I.A.No.98 of 2017 in O.S.No.35 of 2017. Aggrieved by the order of the Trial Court, the revision petitioners/defendants approached this Court by way of this Civil Revision Petition.
3. Heard both side and perused the records in this Civil Revision Petition.
4. The learned counsel appearing for the revision petitioners has contended that the respondent/plaintiff is one of the member of the revision petitioners/defendants house construction society. She purchased plot No.210 measuring 1750 sq.ft and the other unsold plots are in possession of the revision petitioners/defendants. But, the respondent/plaintiff has filed the suit mentioning the properties of the revision petitioners/defendants without producing any title deed. Being a member of the society, the respondent/plaintiff cannot file a suit against the society. The suit is only for bare injunction. The respondent/plaintiff has filed the petition for appointment of Commissioner to note down the physical features, which indirectly sought to find out the factum of possession of the property. The possession of property has to be adjudicated only by oral and documentary evidence and not by way of Commissioner’s report. The dispute of determining the possession could not be left to the Advocate Commissioner and the appointment of Commissioner for making enquiry about the factum of possession of the property in dispute is improper as the same has to be adjudicated on framing issues. Hence, the petition for appointment of Commissioner is not maintainable. The Trial Court without considering the facts of the case, has passed erroneous order appointing an Advocate/Commissioner and the same is liable to be set aside and the revision petition may be allowed. In support of his argument, the learned counsel for the revision petitioners has relied on the following citations:
(1) 2006 - 2 Law Weekly 159 (Chandrasekaran & 6 Others Vs. V.Doss Naidu, wherein it is held in paragraph No.17 as follows:
“17. .........That material issue of determining the possession cannot be left to the Advocate/Commissioner. The appointment of Advocate Commissioner for making enquiry about the factum of possession of the property in dispute is improper since the same has to be adjudicated upon framing issues and recording evidence.”
(2) 2006 (5) CTC 494 (Chinnathambi and Others Vs. Anjalai), wherein it is held in paragraph No.9 as follows:
“9. It is a well accepted principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated only by oral and documentary evidence......”.
(3) (2006) 4 MLJ 626 (T.K.Krishnamurthy Vs. Tamil Nadu Water and Drainage Board rep. by its Senior Engineer, RWS Division, Ootacamund and Anr), wherein it is held in paragraph No.9 as follows:
“9. The report of the Advocate Commissioner alone can never be the basis for deciding the suit as Comm
The discretion of appointing an Advocate Commissioner under CPC does not equate to gathering evidence; it serves to resolve disputes of property boundaries effectively.
The main legal point established is that the purpose of an application for appointment of Advocate Commissioner under Order XXVI Rule 9 C.P.C. should be considered in light of the facts of the case a....
An Advocate Commissioner can be appointed to verify physical features of property but not to ascertain possession in a suit for injunction.
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