Judgment:
1. This Civil Revision Petition has been filed against the order, dated 4.7.2009, made in I.A.No.1 of 2009, in A.S.No.87 of 2007, on the file of the Subordinate Court, Tuticorin.
2. The petitioner in the present Civil Revision Petition is the appellant, in A.S.No.87 of 2007. The respondent herein had filed a suit, in O.S.No.36 of 2006, on the file of the Ditsrict Munsif Court, Tiruchendur. The said suit had been filed praying for a permanent injunction against the petitioner herein, in respect of the suit schedule properties. The suit had been decreed, restraining the petitioner from interfering with the possession and enjoyment of the suit schedule properties by the respondent.
3. The trial Court had stated, inter alia, that the petitioner, who was the defendant in the suit, had not proved his possession of the properties in question, by way of a report filed by an Advocate Commissioner. The petitioner herein had filed an appeal, in A.S.No.87 of 2007, challenging the judgment and decree of the trial Court, dated 25.4.2007, made in O.S.No.36 of 2006, on the file of the District Munsif Court, Tuticorin. He had also filed an interlocutory application, in I.A.No.1 of 2009, in A.S.No.87 of 2007, along with the necessary petition, praying for the appointment of an Advocate Commissioner to file a report, after having noted down the physical features of the suit schedule properties, in order to prove that the possession of the said properties was with the petitioner. However, by an order, dated 4.7.2009, the Subordinate Court, Tuticorin, had dismissed the interlocutory application stating that it was not open to the petitioner to prove his possession, by way of a report to be filed by the Advocate Commissioner. Hence, the petitioner has preferred the present Civil Revision Petition before this Court, challenging the order passed by the Subordinate Court, Tuticorin, in I.A.No.1 of 2009.
4. The learned counsel appearing on behalf of the petitioner had submitted that the petitioner had filed the interlocutory application, in I.A.No.1 of 2009, only due to the reason that the trial Court had stated in its judgment, dated 25.4.2007, made in O.S.No.36 of 2006, that the petitioner had failed to prove his possession of the suit schedule properties, by way of a report filed by an advocate commissioner, noting down the physical features of the properties in question. Therefore, it is not open to the Subordinate Court, Tuticorin, to reject the request of the petitioner for the appointment of an Advocate Commissioner stating that the petitioner cannot prove his possession of the suit schedule properties, by way of an opinion to be given by the Advocate Commissioner. In fact, the Advocate Commissioner could only give a report noting down the physical features of the properties in question, it would not be open to him to given an opinion, with regard to the possession of the suit schedule properties.
5. The learned counsel appearing on behalf of the petitioner had relied on the decision, reported in A.Sulthan and another Vs. Mohammed Dasthagir (2008(6) MLJ 359), wherein it had been held as follows:
Even in a suit for bare injunction, an Advocate Commissioner can be appointed to make local investigation. Such local investigation would facilitate the Court to decide the issue more effectively rather than shutting out the remedy and driving the parties to initiate fresh legal proceedings. To have a local investigation is the best way and to shut out that evidence would amount to denying him the right to adduce evidence and the Court also will be denied of the first hand knowledge about the allegation and counter allegations.
6. The learned counsel appearing on behalf of the respondent had stated that the petitioner cannot prove his possession of the suit schedule properties, by getting an opinion from an advocate commissioner. Therefore, the Subordinate Court, Tuticorin, had rightly rejected the request of the petitioner for the appointment of an Advocate Commissioner, by his order, dated 4.7.2009, made in I.A.No.1 of 2009.
7. The learned counsel appearing on behalf of the respondent had relied on the decision, reported in Chockalingam Vs. Pichai (2003(2) M.L.J. 399), wherein, it had been held as follows:
The application for appointment of a Commissioner should not be allowed for the asking. Power should be exercised judicially.
8. He had also relied on the decision, reported in Chinnathambi Vs. Anjalai (2007(1) MLJ 513), wherein, it had been held as follows: It is a well settled principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated by Court after recording oral and documentary evidence.
9. In view of the averments made by the learned counsels appearing on behalf of the petitioner, as well as the respondent, and on a perusal of the records available, this Court is of the considered view that the Subordinate Court, Tuticorin, had erred in rejecting the request of the petitioner for the appointment of an advocate commissioner, in I.A.No.1 of 2009, in A.S.No.87of 2007, stating that the petitioner cannot prove the possession of the suit schedule properties, by an opinion given by the Advocate commissioner.
10. It is a well settled position in law that an advocate commissioner cannot given an opinion, with regard to the possession of the properties in question. The advocate commissioner can only note down the physical features of the properties concerned and to submit a report in that regard. Thereafter, it is for the Court concerned to decide the issue relating to the possesion of the properties in question, based on the evidence available on record. In such view of the matter, this Court finds it appropriate to set aside an order of the Subordinate Court, Tuticorin, made in I.A.No.1 of 2009, in A.S.No.87 of 2007. Consequently, the Subordinate Court, Tuticorin, is directed to pass an appropriate order appointing an advocate commissioner to note down the physical features of the suit schedule properties and to file a report, within a specified time. Thereafter, the subordinate Court, Tuticorin, is to proceed with the appeal, in A.S.No.87 of 2007 and to dispose of the same, on merits and in accordance with law, as expeditiously as possible, not later than six months from the date of receipt of a copy of this order. Accordingly, the Civil Revision Petition is allowed, with the above directions. No costs. Consequently, connected miscellaneous petition is closed.