Case Note & Summary
The petitioners, Thavamani and Selvamani, filed a civil revision petition under Article 227 of the Constitution of India, 1950, challenging the order dated September 4, 2021 passed by the District Munsif Court, Dharmapuri, dismissing their application I.A. No.255 of 2020 in O.S. No.148 of 2014. The application was filed under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), seeking appointment of an Advocate Commissioner to revisit the suit schedule property and measure it with the help of a surveyor, with reference to the defendant's sale deed. The suit was filed by the plaintiffs for declaration and injunction regarding properties originally owned by Marimuthuammal, who died leaving her daughter Pachiammal. Pachiammal married Marimuthu, and from their wedlock no child was born. Marimuthu then married Kaveriammal, through whom the plaintiffs were born. Pachiammal executed a sale deed in 1998 for 10 cents in S.No.391/1b to one Devarajan, and later executed another sale deed in favour of the defendant for 5 cents in the same survey number. The plaintiffs claimed that the defendant encroached upon their property. An earlier Advocate Commissioner had been appointed, but his report did not measure the property with reference to the defendant's sale deed. The plaintiffs therefore filed the application for a revisit. The Trial Court dismissed the application on the ground that the earlier Commissioner had already inspected the property and filed a report. The High Court, after hearing the petitioners' counsel (the respondent remained unrepresented despite service of notice), held that the Trial Court's order was erroneous. The Court observed that the earlier Commissioner's report did not measure the property with reference to the defendant's sale deed, and such measurement was essential for proper adjudication of the suit. The Court set aside the Trial Court's order and allowed the application, directing the Trial Court to appoint an Advocate Commissioner to revisit the property and measure it with the help of a surveyor, with reference to the defendant's sale deed. The revision petition was allowed, and the connected civil miscellaneous petition was closed.
Headnote
A) Civil Procedure Code - Order XXVI Rule 9 - Advocate Commissioner - Revisit and Measurement - The plaintiffs sought appointment of an Advocate Commissioner to revisit the suit property and measure it with the help of a surveyor, with reference to the defendant's sale deed. The Trial Court dismissed the application. The High Court held that when the earlier Commissioner's report did not measure the property with reference to the defendant's sale deed, the application for revisit was necessary for effective adjudication. The Court set aside the Trial Court's order and allowed the application. (Paras 1-8) B) Civil Procedure Code - Section 151 - Inherent Powers - The Court can exercise inherent powers to order a revisit by the Commissioner when the earlier report is incomplete and further measurement is required for just decision of the case. (Para 7) C) Constitution of India - Article 227 - Supervisory Jurisdiction - The High Court can interfere with an interlocutory order of the Trial Court if it suffers from patent error of law or causes failure of justice. (Para 8)
Issue of Consideration
Whether the Trial Court erred in dismissing the application for appointment of an Advocate Commissioner to revisit and measure the suit property with the help of a surveyor, when the earlier Commissioner's report was incomplete and the defendant's sale deed was available.
Final Decision
The revision petition is allowed. The order dated September 4, 2021 passed in I.A. No.255 of 2020 in O.S. No.148 of 2014 by the District Munsif Court, Dharmapuri is set aside. The Trial Court is directed to appoint an Advocate Commissioner to revisit the suit property and measure it with the help of a surveyor, with reference to the defendant's sale deed. The connected civil miscellaneous petition is closed.
Law Points
- Order XXVI Rule 9 CPC
- Section 151 CPC
- Advocate Commissioner
- Revisit
- Measurement of Property
- Surveyor
- Trial Court's Discretion
- Article 227 of Constitution of India
