“It could not be termed as an attempt to fish for evidence”

Appointment of an advocate commissioner to note down physical features of an immovable property, which was the subject matter of a civil suit, could not be termed as an attempt to fish for evidence by one party against the other, the Madras High Court Bench here has said.

Justice G. Rajasuria made the observation while setting aside an order passed by a District Munsif in Paramakudi of Ramanthapuram district who had rejected the plea of a litigant to appoint an advocate commissioner for finding out whether the property involved in his case was vacant or not.

The Munsif had contended that such appointment would amount to fishing for evidence.

Disagreeing with the view taken by the lower court, Justice Rajasuria said that noting down the physical features would only help the court in delivering a correct judgement.

“I recollect the maxim ‘A picture is worth a thousand words.’

With that in mind, I would like to set aside the order of the lower court and mandate it to appoint an advocate commissioner with the mission to visit the suit property along with a surveyor, measure the same and note down the physical features,” he said.

However, in the same breath, the judge also made it clear that the advocate commissioner was not expected to gather any evidence other than what was required by the court.

He further directed the Munsif to ensure that the entire matter was heard and disposed of within two months.

The orders were passed while disposing of a civil revision petition filed jointly by three individuals Panjavarnam, Sankar and Sarathkumar who were the defendants in a civil suit filed by another individual in 2008 claiming ownership over a piece of land in Paramakudi.

Though the person who instituted the suit claimed that the property in question was a vacant site and hence he was entitled to an injunction restraining others from interfering with his possession, the defendants claimed that they were living in a hut constructed on the same property.

They had urged the Munsif to appoint an advocate commissioner to verify the veracity of their claim. But their plea was dismissed and hence they had approached the High Court with the present revision petition.