HONOURABLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.1434 of 2021
ORDER:-
The present Civil Revision Petition is filed against an
Order dated 07.10.2021 passed in I.A.No.148 of 2021 in
O.S.No.19 of 2015 on the file of the Court of III Additional
District Judge, Rajampet.
2. Heard Smt.S.Pranathi, learned counsel for the petitioner
and Mr.V.V.N.Narasimham, learned counsel for the respondent.
3. The petitioner herein is the plaintiff in O.S.No.19 of 2015 which is filed against the respondent/defendant seeking Specific Performance of an agreement of sale dated 19.03.2015 and permanent injunction etc., In the said suit, he filed I.A.No.148 of 2021 under Order XXVI Rule 9 of Code of Civil Procedure (for short 'C.P.C.') seeking to appoint an Advocate Commissioner to note down the physical features, to locate the petition schedule property and to fix the boundaries with the help of Mandal Surveyor. The said application was opposed by the respondent/defendant and the learned Trial Judge dismissed the same. Aggrieved by which, the present Revision Petition came to be filed.
4. The learned counsel for the petitioner, inter alia, contends that the Order of the learned Trial Judge in rejecting the application for appointment of Advocate Commissioner, mainly on the premise that the petitioner being an agreement 2 NJS,J CRP No.1434 of 2021 holder cannot ask/seek measurements of schedule property, is not tenable and constitutes failure to exercise the discretion vested in the correct perspective. The learned counsel while referring to Order XXVI Rule 9 of C.P.C., further submits that no distinction is made under the said provision of law confining the relief of appointment of an Advocate Commissioner to a particular category of suits. The learned counsel also submits that irrespective of nature of suit, in the given facts and circumstances of the case, the Trial Court is required to consider the justification in the application seeking appointment of Advocate Commissioner. The learned counsel also submits that there is no denial of the execution of agreement of sale in favour of the petitioner/plaintiff by the respondent, except with regard to payment of certain amounts and since the petitioner is having interest in the suit schedule properties, he is entitled for appointment of an Advocate Commissioner, more particularly, in view of the specific averments made in the affidavit, filed along with the application. Placing reliance on the decisions in Salla Eswaramma v. C.Subba Reddy1, Mundladinne Gopal Reddy v. P.Ramachandra Reddy2 and Shaik Zareena Kasam v. Patan Sadab Khan and Others3, the learned counsel would urge that the Order under Revision is liable to be set aside.
5. Per contra, the learned counsel for the respondent submits that the prayer as sought for in the above mentioned 1 (2009) 2 ALT 59 2 (2016) 6 ALD 124 3 (2011) 4 ALD 231 3 NJS,J CRP No.1434 of 2021 Interlocutory Application, would virtually amount to seeking relief/decree sought for in the main suit, without even adjudication of the merits or otherwise of the petitioner's case. While pointing out that the plaintiff is not the owner of the property, but merely an agreement holder, he submits that even as per the averments made in the I.A., the obvious reason for filing the same, is that some 3rd parties are trying to encroach upon the plaint schedule property and there is no averment that the respondent/defendant is changing its physical features. In such circumstances, the learned counsel would urge that if at all, the petitioner/plaintiff may seek an injunction against the 3rd parties, but not entitled to maintain the application seeking appointment of an Advocate Commissioner. The learned counsel further submits that only in the event of the petitioner/plaintiff securing the relief of Specific Performance of agreement of sale, he would be entitled to fixing up of boundaries as sought for in the plaint. In the absence of the same, allowing of the present application would virtually amount to decreeing the suit. Distinguishing the judgments relied on by the learned counsel for the petitioner, he further submits that the same are in a different fact situation and not applicable to the facts in the case on hand. Making the said submissions, the learned counsel submits that there is no illegality or perversity in the Order of the learned Trial Court and no interference is called for. Accordingly, he urges for dismissal of the Revision Petition.
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NJS,J CRP No.1434 of 2021
6. On a consideration of the submissions made by the learned counsel for both the sides and perusal of the record, the point that falls for consideration by this Court is:
"Whether the Order of the Trial Court that an agreement holder in a suit for Specific Performance of agreement of sale is not entitled to seek appointment of an Advocate Commissioner is tenable?"
Point:
7. Before dealing with the respective contentions, it may be appropriate to mention here that in the Written Statement, the respondent/defendant categorically admitted that she received an amount of Rs.5,00,000/- and executed an agreement of sale and also agreed to measure and fix up the exact extent of land to get Clearance Certificate from the concerned authorities and to execute the Registered Sale Deed in favour of the petitioner/plaintiff, though the receipt of further amounts is denied. In the light of the said admission, the contention of the learned counsel that the petitioner has interest in the property, deserves appreciation, though he is an agreement holder.
8. In Mundladinne Gopala Reddy's case referred supra, a learned Judge of the erstwhile Common High Court of Andhra Pradesh at Hyderabad, was dealing with the Orders passed by the Trial Court in the revision petitions filed by the defendants in three suits, seeking Specific Performance of respective agreements of sales in the respective suits. The Trial Court allowed the applications filed by the plaintiffs seeking 5 NJS,J CRP No.1434 of 2021 appointment of an Advocate Commissioner to note down the nature of plaint schedule properties in the respective suits, as the defendants disputed the nature of suit schedule land. The learned Judge while dismissing the Revision Petitions upheld the appointment of an Advocate Commissioner, inter alia, holding that in any suit in which the Court deems that a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a Commission to any person as it thinks fit directing him to make investigation and report to the Court.
9. In Salla Eswaramma's case referred to supra, a learned Judge of the erstwhile Common High Court of Andhra Pradesh at Hyderabad, held that there is no distinction between the suits filed for declaration or for grant of injunction with regard to appointment of Advocate Commissioner under Order XXVI Rule 9 of C.P.C. The learned Judge in categorical terms held that Order XXVI Rule 9 of C.P.C., goes to show that there is no distinction of the suit, in which the Advocate Commissioner can be appointed or rejected, but it makes clear that where the local investigation is required for the purpose of elucidating any matter in dispute, the Advocate Commissioner can be appointed. In the attending facts and circumstances of the case, the learned Judge while opining that no prejudice would be caused and on the other hand, it would help the Court to render complete justice, set aside the Order of the 6 NJS,J CRP No.1434 of 2021 Trial Court and directed appointment of Advocate Commissioner.
10. In Shaik Zareena Kasam's case referred to supra, while setting aside the Order rejecting appointment of an Advocate Commissioner, a learned Judge of erstwhile Common High Court of Andhra Pradesh at Hyderabad, opined that whenever there is a dispute regarding the boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary. The learned Judge also opined that it is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties.
11. Though the learned counsel for the respondent made strenuous effort to distinguish the said decisions stating that they are in a different fact situation and are not applicable to the facts of the present case, a reading of the same would go to show that no distinction is drawn under Order XXVI Rule 9 of C.P.C., with reference to the suits, in which an Advocate Commissioner can be appointed or rejected. The purport of the said decisions, irrespective of the facts of the case, in the 7 NJS,J CRP No.1434 of 2021 considered view of this Court, is to the effect that an Advocate Commissioner can be appointed, even in suits seeking Specific Performance of agreement of sale, by the agreement holders, apart from suits seeking injunction. In the light of the decisions referred to supra, and the conclusions of this Court, the Order under Revision is liable to be interfered with.
12. The other contention of the learned counsel for the respondents that allowing the application for appointment of Advocate Commissioner would tantamount to grant of relief/decree sought for in the main suit, though appear to be tenable in the first blush, this Court is unable to accept the same. Mere appointment of an Advocate Commissioner and the survey that may be undertaken with the help of Mandal Surveyor and fixation of boundaries as sought for, would not confer any right to the petitioner/plaintiff in respect of the suit schedule property, nor would the same amount to granting a decree. So far as the contention with regard to the alleged encroachments and that the petitioner at best can seek an injunction, but not appointment of an Advocate Commissioner, it would appear that the petitioner/plaintiff had obtained temporary injunction against the respondent in I.A.No.218 of 2015 dated 07.10.2021. Be that as it may. It is for the petitioner/plaintiff to seek appropriate interim reliefs in his wisdom and in the present case, an application seeking appointment of an Advocate Commissioner was filed and this Court finds no exception to the same. Therefore, the 8 NJS,J CRP No.1434 of 2021 contentions raised by the learned counsel for the respondent are rejected.
13. As contended by the learned counsel for the petitioner, the learned Trial Court without considering the matter from the perspective as to whether appointment of an Advocate Commissioner is necessitated in the facts and circumstances of the case, simply rejected the application on the premise that the petitioner is only an agreement holder, not having any prima facie title or in possession of the suit schedule property. Such a view is not sustainable in the light of the legal and factual position referred to supra. The point is answered accordingly.
14. In the aforesaid view of the matter, the Civil Revision Petition is allowed by setting aside the Order in I.A.No.148 of 2021 in O.S.No.19 of 2015 on the file of the Court of III Additional District Judge, Rajampet, with a direction to Court below to appoint an Advocate Commissioner, who would execute the warrant with the assistance of Mandal Surveyor, after taking the work memos from the respective parties and putting them on prior notice. No order as to costs.
Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.
____________________ NINALA JAYASURYA, J 06 .05.2022 BLV 9 NJS,J CRP No.1434 of 2021 HON'BLE SRI JUSTICE NINALA JAYASURYA Civil Revision Petition No.1434 of 2021 Dated 06.05.2022 BLV