THE HONOURABLE SMT JUSTICE P.SREE SUDHA
C.R.P.No.2495 of 2023
ORDER:
This Civil Revision Petition is filed against the order of the Principal Junior Civil Judge, Kodad, dated 26.06.2023, allowing E.A.No.28 of 2018 in E.P.No.23 of 2018 in O.S.No.146 of 2010 filed by the plaintiff/Decree Holder, who is the respondent herein, under Order XXVI Rule 9 C.P.C., seeking to appoint an advocate commissioner to note down the violation of the decree passed in the aforesaid suit and to fix boundaries to the suit schedule ' Baata' (passage).
2. Heard both sides and perused the material available on record.
3. The respondent/plaintiff filed the above suit being O.S.No.146 of 2010 for perpetual injunction restraining the defendants and their men from interfering with her peaceful possession and enjoyment of the suit schedule property by using 'Baata', which is leading from Ganapavaram to 2 Kapugallu donka vagu bund. During the pendency of the suit, an advocate commissioner was appointed by the trial Court to note down the physical features of the suit property along with 'Baata' and considering the report of the advocate commissioner and the objections raised by other side, the trial Court decreed said suit vide judgment dated 13.11.2017. Thereafter, the respondent/plaintiff filed E.P.No.23 of 2018 seeking to send revision petitioners/defendants 1 to 3 to civil prison for wilful disobedience of the said decree of perpetual injunction. During the pendency of the said E.P., the respondent herein filed E.A.No.28 of 2018 seeking to an appoint advocate commissioner to note down the violation of the decree by the revision petitioners 1 to 3/J.Drs. and also to fix the boundaries to the suit schedule 'Baata'. The trial Court by docket order dated 07.04.2022 allowed the said application by appointing an advocate commissioner to note down the physical features of the suit schedule property. Aggrieved 3 by the same, revision petitioners 1 and 2/J.Drs. filed C.R.P.No.1241 of 2022 and this Court by order dated 01.07.2022 disposed of the said revision petition with a direction to the trial Court to pass a reasoned order for appointing or not appointing an advocate commissioner. Thereafter, the trial court, after hearing both sides, allowed E.A.No.28 of 2018 filed by the respondent/D.Hr. by order dated 26.06.2023. Aggrieved by the said order, the revision petitioners/J.Drs. again preferred the present revision petition, inter alia, contending that the trial Court ought to have dismissed the petition holding that it is not possible to measure the schedule property and its 'Baata' without the help of Tippan and Field Measurement Book because the sub-division numbers and extents will be mentioned therein. The trial Court erred in coming to the conclusion that no prejudice would be caused to the revision petitioners if an advocate commissioner is appointed as prayed for by the respondent herein. The claim of the 4 respondent/D.Hr. is not at all maintainable since the prayer in E.A.No.28 of 2018 is parallel to that of the main E.P.No.23 of 2023. Further, the respondent herein is trying to prove her case through the Court process by gathering evidence without adducing substantial evidence in E.P. The trial Court ought to have held that it is not possible to compare the earlier commissioner's report with the report to be submitted by the second advocate commissioner because there were no measurements in the earlier commissioner's report. Therefore, he requested the Court to set aside the impugned order of the trial Court.
4. No doubt, the Court may issue commission only if it thinks fit to direct such an investigation and to report thereon. But, in this case, it is an admitted fact that Commissioner was already appointed in the Original suit and a report was also filed. Already suit was decreed by the trial Court on merits and E.P. was filed for execution of the 5 said decree and as such, there is no requirement to appoint an advocate commissioner again. However, the trial Court allowed the application without appreciating the facts properly. Therefore, this Court is of the view that it is just and reasonable to set aside the impugned order of the trial Court.
5. Accordingly, the C.R.P. is allowed by setting aside the impugned order dated 26.06.2023, passed by the trial Court in E.A.No.28 of 2018 in E.P.No.23 of 2018 in O.S.No.146 of 2010. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________ JUSTICE P.SREE SUDHA 02 .11.2023 Gsn