Procedural fairness in appointing an Advocate Commissioner can be achieved through subsequent opportunities for objections.

JUDGMENT

The original petition is filed to set aside the order dated 23.02.2022 passed in I.A.No.2/2022 in O.S.No.376/2015 (Ext.P5) by the Court of the Munsiff, Punalur.

2. The petitioners' case, in a nutshell, relevant for the determination of the original petition is that, they are the defendants 1 and 2 in O.S.No.376/2015, filed by the respondents 1 to 3, seeking a decree for fixation of boundary and other consequential reliefs. The 4th respondent, who is now no more, was the 3rd defendant in the suit. The petitioners have filed Ext.P2 written statement to Ext.P1 plaint. They have specifically contended that in an earlier round of litigation between the parties, the respondents have suffered an inter-party judgment which has been concurrently confirmed by the District Court and this Court in A.S.No.74/1992 and S.A.No.818/1994, respectively. There was also a previous litigation between the parents of the parties as O.S.No.195/1974. Now, Ext.P1 plaint has been instituted. The respondents 1 to 3 have filed Ext.P4 application to appoint an Advocate Commissioner. The petitioners were not afforded an opportunity to file their objection to Ext.P4 application. Instead, the Court below has allowed the application, by the impugned Ext.P5 order. Ext.P5 is patently erroneous and is liable to be set aside. Hence, this original petition.

3. Heard; Sri.A.Kevin Thomas, the learned counsel appearing for the petitioners and Sri.Joby Cyriac, the learned counsel appearing for the respondents 1 to 3.

4. On a perusal of Ext.P5 order, it is seen that the Court below has allowed Ext.P4 application by appointing an Advocate Commissioner, to be assisted by a Taluk Surveyor, to ascertain the matters sought for in Ext.P4 application.

5. The principal grievance of the petitioners is that they were not given an opportunity to file a written objection to Ext.P4 application.

6. The learned counsel appearing for the petitioners argued that, if the Advocate Commissioner finds out the matters sought to be elucidated in Ext.P4, without even an objection being filed to Ext.P4 application, it may cause prejudice to the petitioners. Moreover, the petitioners have also not been given an opportunity to file their work memo before the Advocate Commissioner. Therefore, the petitioners were compelled to file this original petition.

7. Undisputedly, the suit is of the year 2015.

There were previous litigations between the parties. The Court below has by Ext.P5 order appointed an Advocate Commissioner, to be assisted by a Taluk Surveyor, to elucidate the matters sought for in Ext.P4. I do not find any error or illegality in Ext.P5 order passed by the Court below. Ext.P5 order will only assist the Court below to effectively decide the suit.

In the above legal and factual matrix, I confirm Ext.P5 order with a rider, by permitting the petitioners and the respondents to file their work memo before the Advocate Commissioner at the time of inspection of the property. Needless to mention, both sides would also be at liberty to file their written objection to the commission report, if so advised and warranted. With the above observation, this original petition is disposed of.