C.R.P.No.3080 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.09.2023

CORAM :

THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN

C.R.P.No.3080 of 2019

and

C.M.P.No.20010 of 2019

1.Selvi (died)

2.G.Venkatesan

3.V.Boopathy

4.V.Srinivasan

(P2 to P4 brought on record

as LRs of deceased vide

order dated 12.09.2023

in CMP Nos. 21166 to 21168/23)

.. Petitioners

vs

Geetha

.. Respondent

Petition filed under Section 115 of CPC to set aside the fair

and decreetal order dated 04.01.2019 made in I.A.No.93 of 2018 in

A.S.No.12 of 2016 on the file of the Subordinate Court,

Arrakkonam, Vellore District.

For Petitioner

:

Mr.K.V.Ananthakrushnan

For Respondent

:

Mr.B.Hari Babu

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C.R.P.No.3080 of 2019

ORDER

This revision arises against an order passed in I.A.Nos.92

and 93 of 2018 in A.S.No.12 of 2016. A.S.No.12 of 2016 is an

appeal pending on the file of the Subordinate Court at Arakkonam.

Originally, O.S.No.23 of 2010 was filed by the respondent before

me for permanent injunction, to which a written statement was

presented and the matter was contested over a period of five

years. Thereafter, the learned District Munsif at Arakkonam

entered into a judgment on 16.12.2015. The learned District Munsif

decreed the suit. Against the said judgment and decree, A.S.No.12

of 2016 was presented.

2.

The applications in I.A.Nos. 92 and 93 were filed for

the purposes of re-opening the case for arguments on the side of

the appellant and for appointment of an Advocate Commissioner to

inspect the suit property and Survey No. 229/2B an adjacent

property along with the relevant records and to submit a report.

The applications were dismissed by the learned trial Judge on

04.01.2019.

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C.R.P.No.3080 of 2019

3.

I have heard Mr.K.V.Ananthakrushnan, learned counsel

appearing for the petitioners and Mr.B.Hari Babu, learned counsel

for the respondent.

4.

When the revision was taken up for disposal, I

enquired Mr.K.V.Ananthakrushnan as to how his client is

maintaining an application under Order 26 Rule 9 CPC without an

application under Order 41 Rule 27 CPC. I made this query

because a report of the Advocate Commissioner together with the

evidence that he collects during the course of inspection forms

evidence in the suit under Order 26 Rule 10(2) of the CPC. Receipt

of evidence in an appellate stage is permissible only under Order

41 Rule 27 of the CPC. Unless and until, the petitioner is able to

get through the standards of Order 41 Rule 27 CPC, I feel the

application under Order 26 Rule 9 CPC is not automatic. This has a

specific reason.

5.

Under Order 41 Rule 27 of the Code, the petitioner who

seeks for additional evidence will have to convince the Court as to

why he was not in a position to let in additional evidence before

the trial Court and only then the Court, if satisfied, receives the

additional evidence.

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C.R.P.No.3080 of 2019

6.

Mr.Ananthakrushnan, responded that the Advocate

Commissioner's report should be first received and thereafter the

Court shall decide whether it is evidence or not.

7.

I am unable to accept this contention because as

stated above under Order 26 Rule 10 (2) of the Code, the report of

the Advocate Commissioner together with the evidence collected

by him forms a part of the record. If an Advocate Commissioner is

appointed and he submits a report and it becomes part of

evidence, the question of dealing with Order 41 Rule 27 CPC

subsequently does not arise. Therefore, the application in

I.A.No.93 of 2018 for appointment of Advocate Commissioner

without an application under Order 41 Rule 27 CPC, in my view, is

not maintainable.

8.

The correct procedure, according to me, is when a

party who seeks for appointment of an Advocate Commissione