The trial Court's appointment of an Advocate Commissioner is permissible for identifying property in a suit for recovery, and such appointment serves to assist the Court in its determination.

ORDER

This petition has been filed to set aside the fair and decreetal order dated

28.09.2022 passed in I.A.No.15 of 2022 in O.S.No.37 of 2014 on the file of the Principal District Munsif Court, Ambasamudram.

2. The petitioners are the defendants in O.S.No.37 of 2014. The said suit was filed by the respondent Nos.1 and 2 seeking declaration and recovery of possession. Pending the suit, the respondents filed an interlocutory application in I.A.No.15 of 2022 seeking appointment of an Advocate Commissioner which was allowed in their favour on 28.09.2022. Aggrieved by the said order, the present civil revision petition has been filed.

3. The learned counsel appearing for the petitioners would submit that the suit was originally filed for the relief of declaration and permanent injunction, but later amended to include the reliefs of declaration and recovery of possession. When the suit is for declaration and recovery of possession based on a sale deed and title documents, there is no necessity to appoint an Advocate Commissioner for deciding title. However, in the present case, the trial Court appointed an Advocate Commissioner, which according to the petitioners, is unsustainable. He would further submit that earlier, the respondent Nos.1 and 2 had filed I.A.No.174 of 2014 for appointment of an Advocate Commissioner, which was dismissed for default on 04.01.2014. Thereafter, the respondents along with another person, viz., Ramaiya, filed I.A.No.407 of 2015, which was allowed by the trial Court. Aggrieved by the said order, the petitioners filed C.R.P.(MD) No.2374 of 2015 before this Court, and by order dated 10.04.2018, this Court allowed the civil revision petition. Subsequently, the respondents filed I.A.No.2 of 2019 again seeking appointment of an Advocate Commissioner, which was dismissed on 23.04.2019. The learned counsel would therefore submit that the respondents have been repeatedly filing interlocutory applications for the same relief, only to drag on the proceedings. Hence, he prays for allowing this petition.

4. Per contra, the learned counsel appearing for the respondent Nos.1, 2, 4 and 8 would submit that initially the suit was filed for declaration and permanent injunction, but later the reliefs were amended to include declaration, and recovery of possession. According to them, the petitioners have encroached upon a portion of the suit property, and in order to identify the encroached portion, the appointment of an Advocate Commissioner is necessary. No prejudice would be caused to the petitioners by such appointment. He relies upon the decision of this Court reported in 2019 (2) MWN (Civil) 514 ( K.V. Perumal vs. N. Gokulavasan ), wherein it was held that appointment of an Advocate Commissioner to identify the suit property with the help of a qualified Surveyor is permissible in order to properly adjudicate the dispute.

The relevant portions in the said judgment are extracted hereunder:

“9. Considering the facts and circumstances of the present case, I am of the view that the reasons stated by the Court below cannot be accepted, as there is no dispute with regard to the identification of the property, it does not mean that the petitioners/plaintiffs cannot seek for appointment of Advocate Commissioner under Order 26 Rule 9 and Section 151 of CPC. The measurement and identification of property is useful to the Court to arrive at a proper conclusion in respect of the property and the Advocate Commissioner will not measure the property on its own, but with the help of Village Administrative Officer and Surveyor, on basis of revenue records. Hence, if the Advocate Commissioner visited the property and note down the physical features and measured the property with