RAJAM ABRAHAM Vs. SHANTHA

JUDGEMENT

(1.) THE revision petitioner is the plaintiff in O.S.No.95 of 1992 in the Court of District Munsif of Kodaikanal. He filed the suit for pertnanent injunction restraining the respondent/defendant from interfering with his possession of the suit property which is a House and vacant site on the northern side of old Survey No.99/R2-C3 in Lake Road, Kodaikanal Town. He claimed in the plaint that he has purchased this property under a sale deed-dated 27.4.1992 from the power agent of the owner Yasumithiran. According to him, the suit was laid since the defendant sought to disturb his possession. Plaintiff also obtained an ex parte injunction in I.A.No.153 of 1992. THEreafter, the defendant came forward with I.A.No.167 of 1992 for the purpose of appointment of an Advocate-Commissioner to inspect the suit property, measure the same with the help of qualified Taluk Surveyor and to find out whether the building is situated in Survey No.99/B-2-C3 alone or in both Survey Nos.99/B2-C3 and 99/B2-C and to note the physical features and file his report with plan. Since the learned District Munsif has allowed the application and ordered appointment of a Commissioner, the plaintiff has come forward with this revision petition.

(2.) ONE of the grounds on which the revision petitioner challenges the order of the court below is that the trial court has not passed a speaking order. A perusal of the impugned order discloses that there is no discussion regarding the respective contentions of the parties and why it is necessary that a Commissioner has to be appointed. However, the order of appointment of a Commissioner cannot be quashed on that sole ground, when we are able to see from the materials on record that the facts herein warrant such as appointment.

(3.) LEARNED counsel for the revision petitioner first submits that the defendant has not even filed her "written statement in the suit and the appointment of a Commissioner at this stage is premature. There is no merit in the above contention. The case of the present revision petitioner is already stated in the earlier suit O.S.No.91 of 1992 and so it is not as if we are not in a position to know what is the defence of the present defendant in this case. f 0.26, Rule 9. C.P.C. enables the court to depute a commission for local investigation whenever it considers that it is necessary for the purpose of elucidating any matter in dispute or of ascertaining the market-value of any property or the amount of any mesne profits or damages or annual net profits. If we are to hold that only after filing of the written statements commissioner could go, it would not be possible for a defendant to immediately bring to the notice of the court essential facts and materials in his favour by taking out a commission. For filing written statement defendant will have to consider every pros and cons involved in the suit and he will have to go through the documents relied on by the plaintiff or to be relied on by him. For that it would necessarily take time. When defendant receives summons of a case or comes to know of a suit instituted against him he can immediately rush to the court and ask for a commission to be deputed to make local inspection. If the Court is to wait till written statement is filed the defendant is likely to be deprived of the precious opportunity of bringing facts and materials to the notices of the court which are of great relevance] for proper and just decision of the case. In certain cases urgent commission will be the need of the hour. Defendant's right to take an urgent commission cannot be defeated on the ground that he has not filed written statement. A single Judge of the Kerala High Court has held in John v. Kamarun-nisa, A.I.R. 1989 Ker. 78, where local inspection under 0.26, Rule 9, C.P.C. is requisite and proper for elucidating matters in dispute in the suit, the same cannot be denied on the ground that the defendant has not yet filed his written statement. The said provision places no such bar on the court exercising the power. And I am in respectful agreement with that view.