Telangana High Court
Mende Shekar vs Manchikanti Balaji on 13 June, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No. 498 of 2025
ORDER:
1. The present Civil Revision Petition is preferred aggrieved by the order dated 23.01.2025 in I.A. No.948 of 2024 in I.A. No.851 of 2024 in O.S. No.48 of 2024 passed by the Principal Senior Civil Judge, Nalgonda.
2. The revision petitioners are the plaintiffs in the main suit filed vide O.S. No. 48 of 2024 under Order VII rule 1 and 3 r/w Section 26 of C.P.C.
3. The petitioners along with the suit filed interlocutory application under order XXXIX Rule 1 and 2 r/w Section 151 of C.P.C. vide I.A. No. 851 of 2024 for grant of injunction.
4. The respondents herein who are defendants in the main suit and also respondents in the I.A. No. 851 of 2024 have filed the underlying interlocutory application in the I.A. filed by the petitioners herein for grant of injunction, under order XXVI rule 9 r/w Section 151 of C.P.C for appointment of an advocate commissioner to note down the physical features of the Suit 2 schedule property and for recording the extent of suit schedule property.
5. The court below considering the nature of relief sought for in the suit had partly allowed the underlying Interlocutory Application. Aggrieved by the same present revision is filed.
6. Heard Sri E. Srinivasa Rao, learned Counsel for the petitioners, and learned Counsel for the respondents and perused the record.
7. The Revision Petitioner's herein contend that they had filed a suit vide O.S. No. 48 of 2014 on the file of Senior Civil Judge, Nalgonda, against the respondents herein for Declaration of Title and injunction in respect of Suit Schedule Property i.e. Open House Plot No. 84 in Ward No. 6, Block No. 4 inside residential Zone total admeasuring 4,44,44 Sq yds situated at Nagarjuna Nagar Colony, Nalgonda Town & District and filed an interlocutory application vide I.A. No. 851 of 2024in O.S.No. 48 of 2024 to issue ex parte temporary injunction order against the respondents herein.
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8. The Petitioners contend that the respondents herein had filed the underlying Interlocutory application in the I.A. filed by the petitioners seeking grant of exparte injunction, for appointment of an Advocate Commissioner to note down the physical features of the Suit Schedule Property and for the purpose of recording the extent of Suit Schedule property namely existing constructions, compound wall, to verify and record electricity connection details and tap water connection details, bore well observation, to verify and record the permission given by Nalgonda Municipality etc. in connection with the Suit Property.
9. The Petitioners contend that they have filed their Counter in I.A. No. 948 of 2024 opposing the prayer for the appointment of an Advocate Commissioner. The Petitioner further contends that the Court below erred in allowing the interlocutory application filed by the respondents hereinunder Order XXVI Rule 9 of CPC inasmuch as an Advocate Commissioner cannot be appointed for gathering evidence in support of one of the parties.
10. The Petitioners also contend that the Court below ought to have dismissed the Petition filed by Respondent No. 1 for 4 appointment of Advocate Commissioner by directing them to adduce independent evidence in support of their case as the petitioners being dominus litus are bound to prove their case and it is not for the respondents herein to get a commissioner appointed in an injunction suit.
11. The petitioners further contend that the question of whether the plaintiffs are in possession of the suit schedule property as on the date of the suit is a matter to be adjudicated upon based on the oral and documentary evidence adduced by both parties, and hence, the appointment of an Advocate Commissioner was neither necessary nor warranted.
12. Per contra, Respondent No.1 contends that, upon a comparison between the Suit Schedule Property and the Written Statement filed by the Petitioners herein, several major discrepancies have been identified, particularly with respect to the extent of the property, boundaries, existence of a compound wall, nature of construction, possession, and the requisite permissions obtained from the Government, among other aspects. 5
13. The Respondent No.1 contends that the petitioners herein have intentionally instituted the main Suit against Respondent No.1/Defendant No.1 and other defendants with a mala fide intention to grab the property belonging to Respondent No.1 and to unlawfully dispossess him from its physical possession. In view of the said circumstances, it is just and necessary to appoint an Advocate Commissioner to inspect and record the physical features of the suit schedule property, including the existing constructions, compound wall, extent of the property, details of electricity and water connections, borewell observations, and to verify and record any permissions obtained from the Nalgonda Municipality in relation to the said property.
14. The respondent No.1 also contends that an appointment of Commissioner would assist the Court below in arriving at a just and proper conclusion in the adjudication of I.A. No. 851 of 2024 as well as the main suit and no prejudice would be caused to the petitioners herein by the appointment of an Advocate Commissioner. The respondent No.1further contends that the trial Court has rightly allowed the interlocutory application for 6 appointment of an advocate commissioner to note down the physical features of the Suit schedule property.
15. The Trial Court upon hearing both sides and by perusing the record, observed that the Advocate commissioner can be appointed for the purpose of local investigation as no amount of evidence adduced in the court will clear the ambiguity and vagueness except evidence taken from its peculiar and unusual nature on the spot in order to clarify a point which may leave doubt orambiguity on record.
16. The Trial Court by observing above appointed Sri Md.Raziuddin, Advocate As advocate commissioner and the Advocate commissioner is directed to note down the physical features of suit schedule property on the spot with the assistance of Mandal Surveyor and to record the boundaries and existence of any constrictions made viz, house, compound wall etc. The Advocate commissioner fee is fixed at Rs.15,000/- payable by the petitioners herein and further held that in so far as the relief sought for verification of the record pertaining to electricity connection details, water tap connection details, bore well 7 connection details and permission of the Nalgonda Municipality for construction by the advocate commissioner is refused.
17. I have taken note of the contentions urged.
18. The sole issue falling for consideration before this Court, is as to whether an Advocate commissioner can be appointed in a suit for perpetual injunction even before framing of issues.
19. In order to examine the issue at hand, it is beneficial to referto Order 26 Rule 9 of the Code, 1908 which reads as under:
Commissions for local investigations:
"In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
From a reading of the said rule, it is understood that it is the power of the trial Court to appoint an advocate commissioner and is discretionary in nature.8
20. At the outset it is trite law that when the identity of the property is disputed, it is appropriate for the Court to appoint an Advocate commissioner for investigation and demarcation of the suit scheduled property (See: Haryana Waqf Board Vs. Shanti Sarup and Ors 1).
21. The erstwhile High court for the state of Andhra Pradesh in Velaga Narayana and Ors. Vs. Bommakanti Srinivas and Ors 2, observed that such discretionary powers vested in the court should be exercised in a judicious manner while taking into consideration the nature of the dispute. The relevant observations are as under:
"13. Under Rule of Order 26 in any suit in which the Court deems a local investigation is necessary or proper for the purpose of elucidating any matter in dispute, it can issue a commission. Though issuing commission is discretionary, the Court has to exercise discretion in an appropriate and judicious manner. The purpose and object of local investigation under Rule 9 is to have the evidence from the spot itself to have a correct and proper understanding of the dispute between the parties. The local investigation report submitted by the commissioner enables the Court to make a correct assessment of evidence on record. When the Court is of the opinion that the 1 2008 (8) SCC 671 2 2014 (3) ALD 605 9 material on record requires elucidation, it would be just and reasonable to issue a commission for the said purpose. A commission at the instance of one of the parties to find out as to who is in possession of the property cannot be issued as it enables the party seeking appointment of commissioner to collect or gather evidence. But, where there exists a dispute regarding suit property, the Court has to necessarily issue a commission with the assistance of a surveyor, otherwise, it would be highly difficult for the Court to completely and effectively resolve the dispute and issuing such commission would not amount to collection of evidence. Commission for the said purpose can be issued prior to or after the parties let in their evidence."
19. In the case of Arvind Kumar Agarwal Vs. Legend Estates(P) Limited, 3 the erstwhile High Court of Andhra Pradesh had observed that an Advocate commissioner can be appointed in a suit for perpetual injunction only where there is a serious dispute pertaining to the boundaries or identity of the property.
20. Further, the erstwhile High court for the State of Andhra Pradesh in K. Dayanand Vs. P. Sampath Kumar4, held that the Code does not absolutely bar the appointment of an advocate commissioner to note down the physical features of a property in 3 MANU/AP/2250/2014 4 MANU/AP/2260/2014 10 suit for injunction. This Court further held that if such an exercise was necessary to reach the correct conclusions it was just to appoint an Advocate commissioner. The relevant observations are as under:
"25. There is no absolute bar on appointment of Commissioner in a suit for injunction also as per the law laid down in the above referredjudgments nor the provisions of Section 75 and Order XXVI Rule 9 do impose such a prohibition. The respondent- plaintiff filed the present application for appointment of Advocate Commissioner to note down the physical features of the schedule property only and not for the purpose of finding out who is in possession of the property. The Court below recorded valid reasons for appointment of Commissioner. The Court below in the considered opinion of this Court is perfectly justified in appointing the Advocate Commissioner and that the said order is in accordance with the principles laid down in the above referred judgments. Therefore, the order under revision does neither suffer from any fundamental infirmity nor any jurisdictional error, which warrants interference of this Court under Article 227 of the Constitution of India.Taking into consideration the totality of circumstances, this Court is of the considered view that appointment of Commissioner in this case would undoubtedly and certainly assist the Court below to arrive at a just and correct conclusion."
(emphasis supplied) 11 Further where the issue in a suit for perpetual injunction revolves around location, identification, measurement of a property, local investigation ought to be done at an earlier stage, so that parties can go to trail prepared.
21. In the case of Donadulu Uma Devi v. Girika Katamaiah @ Basaiah and others 5, the erstwhile High court for the state of Andhra Pradesh held that, there is no restriction with regard to the appointment of a person to carry out such local investigation under Order XXVI Rule 9 CPC and it includes impliedly the power of the Court to appoint a Commissioner to visit such property and get it surveyed and also note its physical features taking help from a qualified Surveyor subject to necessary requirement.
22. Thus, from the aforesaid decisions, it is clear that even in a suit for injunction simpliciter, the Court has discretion to order localization of property, provided there is a serious dispute between the parties with regard to the either boundaries or identification. However, it is needless to reiterate that such report 5 2013 (1) ALT 548 12 cannot record any particulars pertaining to the person in possession of the property.
23.Therefore, in the light of the settled position of law, this Court is of the view that the impugned order dated. 23.01.2025 appointing an Advocate Commissioner to localize the suit scheduled property before the framing of issues does not suffer from any infirmity.
24. Resultantly, this Civil Revision Petition is devoid of merit and is dismissed. The order dated 23.01.2025 in I.A. No.948 of 2024 in I.A. No.851 of 2024 in O.S. No.48 of 2024 passed by the Principal Senior Civil Judge, Nalgonda, is sustained. No order as to costs.
Consequently, miscellaneous petitions pending if any shall stand closed.
___________________ T. VINOD KUMAR, J Date: 13.06.2025 MRKR/VSV