The trial court has the discretion to appoint an Advocate Commissioner for local investigation under Order 26 Rule 9 CPC, and if the court is not satisfied with the proceedings of the Commissioner, it may direct such further enquiry as it thinks fit under Order 26 Rule 10(3) CPC. It is not a hard and fast rule that in all cases, the earlier Commissioner's report has to be scrapped before ordering for another Advocate Commissioner, and it has to be decided on the facts of the individual cases.

CRP(MD)No.1316 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 11.01.2023

CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI

CRP(MD)No.1316 of 2022

and

CMP(MD)No.5448 of 2022

R.M.Ponnusamy

: Petitioner

Vs.

G.Thangaraj

: Respondent

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of

India to call for the records relating to the docket order passed by the learned II

Additional District Munsif, Tiruchirappalli, in O.S.No.1498 of 2012, dated

03.03.2022 and set aside the same.

For Petitioner

: Mr.B.Saravanan

For Respondent

: Mr.K.S.Kathiravan

*****

ORDER

The petitioner is the defendant in O.S.No.1498 of 2012, which is pending on

the file of the II Additional District Munsif Court, Tiruchirappalli and he filed this

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CRP(MD)No.1316 of 2022

revision petition as against the docket order dated 03.03.2022 passed in O.S.No.

1498 of 2012, in and by which, the trial Court has suo-motu reopened the petition

and appointed a new Advocate Commissioner to inspect the suit property along

with a qualified Surveyor to measure the suit property specifically from Trichy to

Pudukottai road.

2.Learned Counsel for the petitioner submitted that the suit was filed in the

year 2012 for the relief of declaration, injunction and recovery of possession. The

trial was concluded, arguments were finished on either side and the suit was

posted for judgment. On 17.12.2021, the trial Court suo-motu reopened the case

for certain clarifications and on 21.12.2021, both sides have filed their written

arguments. Thereafter, the trial Court posted the case for judgment on 23.12.2021.

While so, on 03.03.2022, the trial Court reopened the case and suo-motu ordered

for appointment of a new Advocate Commissioner without scrapping the earlier

report filed by the earlier Advocate Commissioner, which would cause confusion

in the entire suit proceedings. He further submitted that the trial Court has simply

reissued the warrant without any reasons and without scrapping the earlier report.

Therefore, he prayed for interference. He has also relied upon the following

decisions of this Court in support of his contention:-

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CRP(MD)No.1316 of 2022

i) Visvanadham v. Mangamma and Others, [AIR 1930 Mad 236];

ii) Padmanabhan v. Krishnamurthy, [2005 (3) CTC 619];

iii) Kitnammal v. Nallaselvan and Others, [2005 (1) CTC 356];

iv) Kamala Devi v. T.P.Manoharan, [CRP.No.2134 of 2008, dated

14.10.2008];

v) A.Elumalai v. G.Vijayalakshmi and Others, [CRP.No.2010 of 2016,

dated 21.11.2016];

vi) Chinnasami v. Amudha and Others, [CRP.No.1045 of 2011, dated

17.08.2017];

vii) Raju v. Easwaran and Others, [CRP.No.1938 of 2013, dated

31.01.2017]; and

viii) Govindasamy v. Raman, [CRP.No.3115 of 2018, dated 29.07.2021].

3.Learned Counsel for the respondent submitted that he has not filed any

application for re-issuance of Commissioner warrant and it is the Court, for its

clarification, has issued the warrant. Therefore, there is no reason to interfere with

the order passed by the trial Court and he prayed for dismissal.

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CRP(MD)No.1316 of 2022

4.This Court paid it's anxious consideration to the rival submissions and

also to the materials placed on record.

5.The suit was filed in the year 2012 and an application for appointment of

Advocate Commissioner under Order 26 Rule 9 CPC was filed by the respondent /

plaintiff in the year 2012. The said application was allowed by the trial Court and

an Advocate Commissioner was appointed. The Commissioner inspected the

property and filed his report on 13.12.2018. After the trial, the arguments were

concluded on 04.12.2021 and the suit was posted for judgment on 17.12.2021.

Thereafter, it was reopened for clarification and subsequently, by order dated

03.03.2022, the trial Court suo-motu appointed a new Advocate Commissioner to

inspect the proper