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Meenakshi vs Vennila on 6 September, 2008

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 06.09.2008

CORAM

THE HONOURABLE MR. JUSTICE M.VENUGOPAL

C.R.P. (PD) No.1464 OF 2008

and

M.P.No.1 of 2008

Meenakshi .. Petitioner

Versus

1. Vennila

2. Anbu Nilavan .. Respondents

Civil Revision Petition filed under Article 227 of Constitution of India against the fair and decreetal order
dated 09.01.2008 made in I.A.No.314 of 2007 in O.S.No.104 of 2007 on the file of the Principal District
Munsif, Villupuram, Villupuram District in dismissing the application under Order 26 Rule 9 of C.P.C. For
appointment of an Advocate Commissioner for local investigation of the suit property. For Petitioner :
Mr.M.V.Karunakaran

For Respondents : Mr.T.Sezhian

R1 and R2

ORDER

This Civil Revision Petition is filed by the plaintiff/petitioner as against the orders passed in I.A.No.314/2007
in O.S.No.104/2007 dated 09.01.2008 on the file of the Principal District Munsif, Villupuram, in dismissing
the application for appointment of Commissioner.

2. The learned Principal District Munsif, while dismissing the I.A.314/2007 filed by the petitioner/plaintiff for
appointment of Commissioner under Order XXVI Rule 9 of C.P.C. to make local inspection of the property
'has inter alia observed' that the petitioner/plaintiff has to prove the possession and that the possession of the
petitioner/plaintiff could be proved by oral and documentary evidence and that the appointment of a
Commissioner for local investigation of the suit property to elicit the matter in dispute is vague and
resultantly, has come to the conclusion that the appointment of the Commissioner will not be helpful in
deciding the issue of the suit etc.

3. According to the learned counsel for the Revision Petitioner that there is a dispute in respect of the lie of the
suit property, measurements on sides in particular north/south, extents and boundaries and all the four sides
and that the lower court has failed to exercise the jurisdiction under Order XXVI Rule 9 of C.P.C. and further
that the lower court has not approached the centre of controversy/dispute in right perspective and therefore,
prays for allowing the revision in the interest of justice.

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Meenakshi vs Vennila on 6 September, 2008

4. The learned counsel appearing for the petitioner in support of his contention for the appointment of
Commissioner relies on the decision reported in Bali Ram, Appellant v. Mela Ram an another, respondents,
AIR 2003 Himachal Pradesh 87 wherein, it is inter alia observed that 'To issue a Commission under Order
XXVI Rule 9 of the court, it is not necessary that either or both the parties must apply for issue of
commission, the court can issue local commission suo moto, if in the facts and circumstances of the case, it is
deemed necessary that local investigation is required and it is proper for the purpose of eliciting any matter in
dispute. Though exercise of these powers is discretionary with the court, but in case to make a local
investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a
final and just decision is rendered in the case.'

5. He also cites on the decision reported in Debendranath Nandi, Appellant v. Natha Bhuiyan, Respondent,
AIR 1973 Orissa 240, wherein it is held that 'the Appellate Court must appoint fresh commissioner before
deciding the appeal if it finds it necessary to reject the report of the trial court commissioner.'

6. Yet another decision reported in Kantaru Sahu and others, Appellants v. Dharma Sahu and another,
Respondents AIR 1983 Orissa 259 has been relied on by the learned counsel for the petitioner, wherein it is
held that 'in view of the said infirmities, the concurrent findings of the trial court and the trial could not be
sustained. The case was remanded to the trial court for conducting a fresh investigation by the commissioner
for local investigation.'

7. Contending contra, the learned counsel for the respondents/defendants contends that in regard to the factum
of possession, the court can obtain the same through the evidence of respective parties and the same need not
be entrusted within the domain of the Advocate Commissioner to gather evidence and in support of his
contention, he drew the attention of this Court to the decision of this Court reported in K.M.A.Wahb and 5
others v. Eswaran and another, 2008 (3) CTC 597, wherein it is held as follows: "As far as the factum of
possession is concerned, Court alone gather evidence through parties and it cannot entrust said matter to
Advocate Commissioner to collect evidence. In as much as there is no dispute with regard to identity of
property, Trial Court has no reason to appoint Advocate Commissioner." 8.This Court has heard the
respective counsels and noticed their contentions. Admittedly, the petitioner/plaintiff has filed a suit for
permanent injunction against the respondents/defendants. The suit property is said to be a Natham. A plea is
taken in the counter in I.A.No.314/2007 filed by the 1st respondent to the effect that the petitioner/plaintiff
neither title nor possession of the suit property and that the suit as filed is not maintainable in law and that the
petitioner/plaintiff has no prima facie case and the balance of convenience is in her favour.

9. It is true that Order XXVI Rule 9 of C.P.C. empowers the court to appoint commissioner to make local
investigation as it finds fit and proper based on the facts and circumstances of the case. At this stage, it is
pertinent to point out that it is not the aim of Order XXVI Rule 9 of C.P.C. to assist a litigant to collect
evidence, where the litigant can get evidence himself. In the instant case, the suit has been filed only for
permanent injunction and as such in regard to the factum of possession, this Court opines that the lower court
alone can gather evidence through the parties to the litigation and therefore, the same cannot be
M.VENUGOPAL, J.

tsi

entrusted to the Advocate Commissioner to gather evidence and in that view of the matter, the Civil Revision
Petition fails and the same is hereby dismissed in the interest of Justice.

10. In the result, the Civil Revision Petition is dismissed. The orders passed by the Court below is confirmed
for the reasons assigned by this Court in revision, leaving the parties to bear their own costs. Consequently,
connected Miscellaneous Petition is closed. 06.09.2008

Index : Yes/No.
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Meenakshi vs Vennila on 6 September, 2008

Internet: Yes/No.

tsi

To

1. The Principal District Munsif, Villupuram, Villupuram District.

2.The Section Officer, V.R.Section, High Court, Madras.

C.R.P. (PD).No.1464 of 2008

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