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MADRAS HIGH COURT
MAHENDRAN – Appellant
Versus
Senthamilselvi – Respondent
CRP/4205/2022
CIVIL PROCEDURE CODE - ORDER 26 RULE 10 - APPOINTMENT OF ADVOCATE COMMISSIONER - PURPOSE - COLLECTION OF EVIDENCE - CANNOT BE APPOINTED AT THE INSTANCE OF PARTIES - COURT'S DISCRETION - ESTABLISHMENT OF CASE THROUGH DOCUMENTS AND EVIDENCE
Fact of the Case:
The revision petitioners/defendants filed an Interlocutory Application for the appointment of the Advocate Commissioner to measure the suit schedule property. The Trial Court dismissed the application, holding that there was no reason to appoint an Advocate Commissioner to measure the suit and that the parties were bound to establish their case through documents and evidence.
Finding of the Court:
The Court held that the practice of filing an application for the appointment of an Advocate Commissioner for the collection of evidence at no circumstances should be encouraged by the Trial Courts. The parties approaching the Court are bound to establish their case through documents and evidence and they cannot utilize the Court as a tool for the collection of evidence.
Issues: Whether an Advocate Commissioner can be appointed at the instance of parties for the collection of evidence.
Ratio Decidendi: The Court relied on the established principle that for the purpose of collection of evidence, an Advocate Commissioner cannot be appointed at the instance of either of the parties to the suit. If at all, any doubt arises in the mind of the Court or certain aspects are to be clarified for arriving at a final decision, the Court has to consider the appointment of an Advocate Commissioner and not otherwise.
Final Decision: The Civil Revision Petition was dismissed.
C.R.P.No.4205 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM
THE HON'BLE Mr. JUSTICE S.M.SUBRAMANIAM
C.R.P.No.4205 of 2022
and
C.M.P.No.22013 of 2022
1.Mahendran
2.Jothi
3.Sekar
4.Peruma
5.Narayanasami
6.Gandhiammal
7.Thulasingam
8.Mallika
9.Venkatachalam
10.Sangeetha
... Petitioners
Vs.
Senthamilselvi
... Respondent
Prayer:- Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the Fair and Decretal Order of the District
Munsif Court at Dharmapuri, dated 23.08.2022 in I.A.No.438 of 2021 in
O.S.No.127 of 2016.
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C.R.P.No.4205 of 2022
For Petitioner
: Mr.T.Deeraj for
M/s.P.V.Law Associates
ORDER
The Civil Revision Petition has been filed challenging the fair and
decretal order dated 23.08.2022 in I.A.No.438 of 2021 in O.S.No.127 of
2016. The revision petitioners are the respondents and the respondent
instituted the suit for declaration and permanent injunction.
2. The revision petitioners/defendants have already filed a written
statement in the suit, more so, they filed an Interlocutory Application in
I.A.No.438 of 2021, for the appointment of the Advocate Commissioner to
measure the suit schedule property. The Trial Court considered the
application and found that there is no reason to appoint an Advocate
Commissioner to measure the suit and the parties are bound to establish
their case through documents and evidence.
3. This Court is of the considered opinion that for the purpose of
collection of evidence, Advocate Commissioner cannot be appointed at the
instance of either of the parties to the suit. If at all, any doubt arises in the
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C.R.P.No.4205 of 2022
mind of the Court or certain aspects are to be clarified for arriving at a final
decision, the Court has to consider the appointment of an Advocate
Commissioner and not otherwise. The practice of filing an application for
appointment of Advocate Commissioner for collection of evidence at no
circumstances be encouraged by the Trial Courts. The parties approaching
the Court are bound to establish their case through documents and evidence
and they cannot utilise the Court as a tool for collection of evidence and
thus, the findings made by the Trial Court in the order impugned is in
consonance with the established principles and there is no infirmity as such.
4. Accordingly, the Civil Revision Petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
sha
03.01.2023
Index:Yes
Internet:Yes
Speaking Order
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C.R.P.No.4205 of 2022
S.M.SUBRAMANIAM.J.,
sha
To
1. District Munsif Court, Dharmapuri.
C.R.P.No.4205 of 2022
03.01.2023
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https://www.mhc.tn.gov.in/judis
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