Andhra Pradesh High Court - Amravati
Md Noohaman vs Chekuri Jagannadharaju on 10 November, 2021
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.433 of 2020
ORDER:-
The respondent herein had filed O.S.No.12 of 2020 before
the XII Additional District Judge, Visakhapatnam seeking a
declaration of his right, title and interest in suit schedule
property, consisting of two extents of land of 400 sq.yards each
in Plot Nos.24 and 25 of Satya Nagar lay out in Sy.No.108/1 of
Endada Village, Visakhapatnam District, and also for the relief
of delivery of possession of the said suit schedule property either
after removal of structures or with the structures.
2. It is the case of the respondent that the wall had
been constructed by him around the suit schedule property and
the petitioners herein were seeking to claim the said property as
theirs. In that view of the matter, the respondent filed I.A.No.12
of 2020, for an advocate commissioner to be appointed to
measure the actual extent of land available within the
compound wall said to have been constructed by the
respondent. The respondent also took the plea that the extent
of land available within the compound wall is 800 sq.yards,
while the petitioners herein are seeking to demonstrate that the
extent of land available is 900 sq.yards and that the entire case
would turn around on the extent of land available within the
compound wall.
3. This application was allowed by the trial Court on
10.01.2020, appointing an advocate of the Court as the
Commissioner, to carry out the measurement of the land.
4. Aggrieved by the same, the petitioners have
approached this Court by way of the present Civil Revision
Petition.
5. The petitioners submit that the said order passed by
the trial Court is bad on various grounds including the fact that
the order has been passed ex-parte and at the very inception of
the suit; without ascribing appropriate reasons; without
appreciating the various facts including the existence of earlier
litigation on this land between the petitioners and the
respondent herein. Apart from these grounds, various other
grounds have also been raised.
6. Sri Ravi Cheemalapati, learned counsel for the
petitioners would submit that the said order of the trial Court
requires to be set aside as grave injustice would be caused to
the petitioners. He further submits that the said order has been
passed without an opportunity being given to the petitioners
and at the very inception of the suit by way of an ex-parte order
and such orders cannot be granted. He relied upon the
Judgment of the erstwhile High Court of A.P reported in Batchu
Narayan Rao vs. Batchu Venkata Narasimha Rao1.
7. Sri E.V.V.S. Ravi Kumar, learned counsel appearing
for the respondent submits that the petitioners have not made
out any case to show that prejudice is caused to the petitioners
on account of the appointment of an Advocate Commissioner.
He would further submit that the reasons set out in the order
are sufficient to make out a case for appointment of an Advocate
Commissioner. He would also submit that the appointment of
2010 LF(AP)799
an Advocate Commissioner is at the discretion of the Court and
the said discretion has always been exercised liberally in order
to ascertain the facts and contours of the dispute before the
Court. He contends that the order of the trial Court does not
require any further interference by this Court.
8. Without going into the controversy as to what is the
extent of land within the compound wall said to have been
constructed by the respondent or by the petitioners as claimed
in the revision petition, the fact would remain that the order has
been passed ex-parte and without giving an opportunity to the
petitioners to set out their case. In these circumstances, it
would be appropriate to set aside the order dated 10.01.2020
and remand the application back to the trial Court for an
appropriate decision after hearing both sides. In view of the
passage of more than 1 ½ years since the order has been
passed, it would also be appropriate to direct the trial Court to
dispose of the said application within one month on receipt of
this order.
8. Accordingly, the Civil Revision Petition is allowed
and remanded. There shall be no order as to costs.
Miscellaneous Petitions, if any pending, in this Civil
Revision petition, shall stand closed.
________________________________
JUSTICE R.RAGHUNANDAN RAO
Date : 10-11-2021
RJS
THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO
CIVIL REVISION PETITION No.433 of 2020
Date : 10-11-2021
RJS
