K M A WAHAB Vs. ESWARAN

JUDGEMENT

(1.) THE plaintiffs are revision petitioners herein, who filed the Suit for specific performance in O.S. No.309 of 2005 on the file of the learned Additional District and Sessions, Fast Track Court No.1, Coimbatore. THE first respondent/defendant has filed I.A. No.697 of 2006 for appointment of an Advocate Commissioner, which was allowed. Hence the present Revision.

(2.) LEARNED counsel appearing for the petitioners submits that the Suit is one for specific performance. The respondent claims that he is in possession of the suit property. To that effect, he filed an affidavit in support of I.A. No.697 of 2006, wherein it is alleged, "I further submit that I was in actual and physical possession of the suit property cultivating cholam in the suit property. There was no demarcating stones, ditches and roads as stated by the respondents/plaintiffs in the suit property. The respondents/plaintiffs have not formed any layout in the suit property. Under such circumstances, it is deemed necessary to note down the physical features of the suit property and take photographs with the help of photographer and measure it with the help of the surveyor".

(3.) LEARNED counsel for the respondent submits that the petitioner has alleged that after the agreement dated 25.1.1993, they took possession of the suit property, they have leveled the lands by engaging bulldozer and spent enormous amount for the purpose of leveling the land, forming layout, carving out roads and digging up ditches and also planted demarcating stories and made the layout fit. Hence, in order to not down the physical features, it is absolutely necessary to appoint an Advocate-Commissioner, so that he can give a report, which will be helpful to assist the Court. In respect of the issues involved, the learned counsel has relied on two judgments, Pillaiyar v. Ganesan, 2000 (1) CTC 279 and Saraswathy v. Viswanathan, 2002 (2) CTC 199: 2002 (2) MLJ 133. So far as the first judgment cited above is concerned, it is held as follows:".10. In the instant case, as already noticed, the lower Court after merely paraphrasing the earlier contentions directed the appointment of an Advocate-Commissioner. In my view, this is a case where one has to travel beyond the order of lower Court to find out whether the ultimate decision by the lower Court to appoint an Advocate-Commissioner can be justified. The respondents have clearly stated in their affidavit in support of the Application for the appointment of an Advocate-Commissioner that the revision petitioner themselves have been using the Suit second item as common pathway for generations, that this has been suppressed by the revision petitioner/plaintiff and he had filed the Suit and the Injunction Application with false details and that after filing of the Suit he was making attempt to block the common pathway. Having regard to this specific stand taken by the respondents in my view, the lower Court was justified in appointing an Advocate-Commissioner to visit the suit property, note down the physical and other features and file a report along with a plan. Merely because the learned District Munsif has given elaborate reasons for ordering the Application, the order need not be set aside and it will be inequitable. The apprehension the Commissioner visited the property and noted down the physical and other features and filed a report along with a plan, the petitioner might obliterate the state of affairs obtaining at the time of the filing of the Suit. It is not an uncommon occurrence that under the cloak of interim orders parties attempt to create the sate of affairs matching their case."".17. This is a clear case where it is necessary to obtain evidence which from its peculiar nature can only be had on the spot. The order of the lower Court does not suffer from any illegality or irregularity nor has it been passed in error of jurisdiction though supportive reasons for the conclusion could have been given by the lower Court.So far as the second judgment cited above is concerned, it is held as follows:".14. As already pointed out, absolutely no prejudice would be caused by the appointment of an Advocate-Commissioner for the purpose of inspecting the property and submitting his report on the physical features, measurements, etc. Though the Commissioner cannot decide the dispute, his inspection and report would help the Court in deciding the dispute. The two decisions relied on by the lower Court do not apply to the facts of the present case.Pointing out the above said judgments, learned counsel for the respondent would submit that appoint of a Advocate-Commissioner to note down the physical features is justified and no prejudice will be caused to the petitioner by the appointment of the Advocate-Commissioner for the purpose of inspecting the property and submitting a report on the physical features measurement, etc.