CRP PD/1009/2003 of CHINNAN, S/O. PALANI Vs MARAPPAN S/O. KUTTIANNA GOUNDE on 18 December 2003

:O R D E R

The above Civil Revision Petition has been filed under Section115 of the Code of Civil Procedure praying to set aside the fair and decretalorder dated 21.3.2003 made in I.A.No.145 of 2003 in O.S.No.96 of 2002 by theCourt of District Munsif, Paramathi.

2. On a perusal of the materials placed on record and uponhearing the learned counsel for both, it comes to be known that the petitionerherein has filed the suit in O.S.No.96 of 2002 before the Court below asagainst the respondent herein for declaration that he has right to take men,cattle, carts and other vehicles through the suit pathway to reach hisproperty and consequential mandatory injunction to restore a portion of thepathway which was obliterated by the respondent/defendant and for permanentinjunction. When the said suit was pending, the respondent/defendant filed apetition in I.A.No.145 of 2003 under Order 26 Rule 9 CPC praying to appoint anAdvocateCommissioner to note down the physical features of the suit property.

3. A Counter was filed before the Court below by the petitioner thereby submitting that the respondent had already filed a suit inO.S. No.33 of 2002 before the same Court as against the petitioner herein for permanent injunction; that in the said suit, the main issue between theparties is whether the petitioner is entitled to use X2, X3 portion (which isthe subject matter in the present suit) of the pathway as cart track or notand in the said suit, the petitioner as the defendant therein filed anapplication in I.A.No.220 of 2002 to appoint an Advocate-Commissioner and theCommissioner also submitted his report and plan and based on theadvocate-Commissioner's report and plan filed therein, the present suit wasfiled by the petitioner; that without disclosing the said fact of anAdvocate-Commissioner having already been appointed and filed the report, thepresent petition filed by the respondent/defendant without asking for scrapingof the earlier report is not sustainable.

4. Based on the above pleadings, the Court below would

4. Based on the above pleadings, the Court below would conduct an enquiry wherein no oral or documentary evidence was adduced oneither side and in consideration of the facts and circumstances of the case,would hold that no document was produced to prove that both suits areconnected to each other and the properties are the same and to determine thedispute and that the appointment of an AdvocateCommissioner is a must. Onsuch reasons, the Court below would ultimately allow the petition filed by therespondent herein for appointment of the Advocate-Commissioner. Aggrieved,the petitioner/plaintiff has come forward to file the above civil revisionpetition on certain grounds such as (i)that the learned District Munsif hasfailed to comprehend the ambit and scope of Order 26 Rule 9 CPC, which hasresulted in miscarriage of justice; (ii) that the learned District Munsif hasfailed to see that with respect to the same property, already theAdvocateCommissioner has visited the suit property and filed his report andplan in the connected suit in O.S.No.33 of 2002 and hence nothing remains tobe elicited by the advocate-Commissioner; (iii) that the learned DistrictMunsif has failed to consider the cause of action alleged in the present suitand it is appropriate to mention that only since the respondent/defendantobliterated a portion of the suit pathway and filed the connected suit inO.S.No.33 of 2002, the present suit was filed; (iv) that the learned DistrictMunsif has failed to see that the appointment of an Advocate-Commissioner istotally unnecessary and further more, the present suit and the suit inO.S.No.33 of 2002 have got to be tried together which would mean that oneCommissioner's report and plan would be suffice to decide the issue incontroversy.

5. During arguments, the learned counsel for both would only reiterate what materials have been brought forth in the application filed forthe appointment of the Commission and the counter filed therein and thepleadings of the above civil revision petition with no new fact orcircumstance having been brought forth nor any law pleaded and thereforetracing the arguments of the learned counsel would only be a wasteful exerciseand hence this Court is left with no choice but to decide the above civilrevision petition on merits and in accordance with law in full considerationof the materia ls placed on record before it.

6. There is no denying of the fact that the respondent herein has already filed O.S.No.33 of 2002 and the petitioner has filed the presentsuit in O.S.Nos.96 of 2002 regarding the same suit properties before the same Court i.e. the Court of District Munsif, Paramathi. Further, there is nodenying of the fact on the part of the lower Court that in the earlier suit,an Advocate-Commissioner was appointed in I.A.No.220 of 2002 in O.S.No.33 of2002 for noting down the physical features of one and the same property, whichare the subject matters in both the suits and the Commissioner also seems tohave inspected the place and filed his report in the earlier suit. In thesecircumstances, it is the case of the petitioner that the appointment of aCommission in the present suit, as it has been done by the lower Court, isunnecessary and is an unwarranted exercise and therefore would stiffly opposethe order passed by the lower Court appointing a Commission on the applicationof the petitioner in I.A.No.145 of 2003 in O.S.No.96 of 2002.

7. For consideration of the implications of the appointment

7. For consideration of the implications of the appointment of the Commission in both the suits, the orders passed thereon by the samelower Court and to have a comparative study, no proper materials, particularlypertaining to the appointment of the Commission in the earlier suit inO.S.No.33 of 2002, have been placed before this Court and therefore based onthe admitted facts, if a decision has to be arrived at by this Court, itshould be pointed out that no proper reason has been assigned on the part ofthe lower Court and the one assigned to the effect that no document wasproduced to prove that both suits are connected to each other and theproperties are one and the same so as to determine the dispute, is untenableand unsustainable in law particularly in view of the fact that both thematters are very well pending before the same Court. Even if no sufficientmaterials have been placed before the Court by either of the parties, it isthe bounden duty of the Court to have a judicial notice of those facts, whichhave been lying at the hands of the lower Court and passing an orderappointing a new commission in the present suit without having a mind to gointo the facts which are very well available with the lower Court itself isnothing short of an act revealing the utter irresponsibility on the part ofthe Court below and therefore the appointment of a Commission in the new suitfor noting the physical features and to file a report is not only luxuriousbut erroneous as well. It would only depict the utter carelessness andslipshod manner in which the lower Court has dealt with the subject unmindfulof the warranting situation where the trial Court is expected to rise to theoccasion in verifying all the connected records which is highly deplorable anddiscredited. The appointment of the Commission by the lower Court is nothingbut an erroneous order and hence it becomes only liable to be set aside.In result,

(i) the above civil revision petition succeeds and is allowed.

(ii) The fair and decretal order dated 21.3.2003 made in I.A.No.145 of 2003 inO.S.No.96 of 2002 by the Court of District Munsif, Paramathi is hereby setaside.

(iii) The trial Court is directed to go into the records very well madeavailable with it and process the earlier commission appointed by itself inO.S.No.33 of 2002 on its own file thus taking judicial notice of the same andto proceed further at the earliest.

However, in the circumstances of the case, there shall be noorder as to costs.

Consequently, C.M.P.No.6696 of 2003 is closed.

Index: YesInternet: Yes

Rao

To

The District Munsif,Paramathi.