A NAGARAJAN Vs. A MADHANAKUMAR

JUDGEMENT

(1.) THE Petitioner has challenged the order appointing a Commissioner in a Part-heard case contending it as one without jurisdiction, per se illegal and even perverse. THE facts in brief are, the respondent herein filed R.C.O.P.No. 1274 of 1992 against the petitioner under Section 10(2)(i) for wilful default, 10(2) (v) for acts of waste and 10(3) (a) (i) for owner's occupation of the Tamil Nadu Buildings (Lease and Rent Control) Act, in short Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as the "Act"). After completion of the pleadings, the case was taken up for trial on 23.8.1993 adjourned to 7.9.1993. THE respondent landlord after examination in part, filed an application for appointment of an Advocate Commissioner to inspect the petition scheduled property occupied by the petitioner herein with a direction to the Advocate Commissioner to avail the services of a civil engineer to submit a report with plan and other enclosures. THE said application was opposed by the petitioner herein tenant. After hearing the arguments on the application, order was reserved and case was adjourned from 24.1.1994 to various dates and finally on 1.11.1994, order was pronounced, by the learned Judge appointing the Commissioner. Learned Judge appointed Shri.R.E. Deenatha Rao, Civil Engineer to inspect the property and find out how the property is used by the tenant, whether any damage caused. If damaged, the effect and the extent of it and the condition of the petition scheduled property.

(2.) THE grievance of the petitioner is that the learned Judge has failed to apply his mind to the facts of the case. According to the petitioner, the landlord should prove the grounds of eviction by adducing proper and necessary evidence, if necessary, by examining his own engineer and cannot seek the aid of the Court to prove his case and get all materials and that can be done only after the closure of the evidence to elucidate any matter in dispute. He has further contended that the learned Judge has misread the statement in the counter that the tenant has acceded to the appointment of an Advocate Commissioner. All that was submitted was only to avail the services of his own engineer instead of asking for appointment of an Advocate Commissioner or an engineer. In substance, the landlord can prove and substantiate his case by examining number of witnesses and producing any number of documents, but cannot seek for appointment of a Commissioner through the aid of the Court at the earliest stage and it can be only for elucidation of the matter in dispute and not meant for collection of evidence. Since the order passed by the learned Judge is not appealable, which is merely procedural and does not affect the rights or liabilities of the parties, he has filed a petition under Article 227 of the Constitution India in view of the decision in THE Central Bank of India Ltd., v. V.S. Gokal Chunk, AIR. 1967 S.C. 799.

(3.) THE main dispute now revolves round the point is at what stage and when a Commissioner can be appointed by the Court" Rule 9 of Order 26, C.P.C. contemplates in any proceeding, in which the Court is of the opinion that local investigation is requisite or proper for the purpose of elucidating any matter in dispute it may issue a commission to such person as if thinks fit direct him to make such investigation and to report thereon to the Court (Italic is mine). Such report shall form part of the record. But the Court or with the permission of the Court, any of the parties to the proceeding may examine the Commissioner in open court touching any of the matters referred to him or mentioned in his report as to the manner in which he has made the investigation. Whether the court is, for any reason, dissatisfied with t he report, it may direct further enquiry to be made as it shall think fit. THE purpose of local investigation is ascertaining, collecting or elucidating facts in respect of any matter in dispute after proper scrutiny of examination and sifting of materials. Elucidate according to Websters Dictionary means "to make light or clear, to explain, to remove obscurity from and render intelligible, to illustrate". According to Chambers Dictionary, elucidate means to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory". According to the Oxford Dictionary, "elucidate means to throw light on, explain" etc.