Dood Basha, vs Moula Sab,
2022 Latest Caselaw 5064 AP

                                   1



      THE HON'BLE SRI JUSTICE BATTU DEVANAND

       CIVIL REVISION PETITION NO.1352 of 2022

O R D E R:

This Civil Revision Petition has been filed aggrieved by

the order, dated 07.04.2022 in I.A.No.79 of 2021 in A.S.No.4

of 2018, on the file of the II Additional District Judge, Kurnool

at Adoni.

2) Heard Sri G. Ramachandra Reddy, learned Counsel

for the Petitioners and Sri Maheswara Rao Muncheam, learned

counsel for the Respondents and perused the material

available on record.

3) The facts of the case are that the petitioners herein

are the respondents in A.S.No.4 of 2018 on the file of the II

Additional District Judge, Kurnool at Adoni, which was

preferred by the 1st respondent herein (i.e., appellant in

A.S.No.4 of 2018) against the decree and judgment, dated

06.01.2018 in O.S.No.153 of 2010 on the file of the Senior

Civil Judge, Adoni, filed by the 1st respondent herein for

permanent injunction. The petitioners herein filed I.A.No.79 of

2021 in A.S.No.4 of 2018 under Order 26 Rule 9 C.P.C. R/w

Sec.151 of C.P.C. seeking to appoint an Advocate

Commissioner to visit the petition schedule property and to

note down the physical features and file his report. The first

appellate Court after careful perusal of the entire material

available on record dismissed the said application. Aggrieved

by the same, the present Civil Revision Petition is filed.

4) Learned counsel for the petitioners submits that the

Court below failed to assign proper reasons and dismissed the

petition only on assumptions that it is nothing but procuring

additional evidence. The Court below should have observed

that the Respondents herein filed suit for permanent

injunction, which is dismissed and against which, the present

appeal lies. The suit is of the nature of permanent injunction,

wherein, the question of possession should be the paramount

issue basing on the prima facie title. Hence, for adjudication of

the same, the appointment of Advocate Commissioner is just

and necessary. The Court below should have considered that

the appeal is nothing but continuation of the suit, wherein

either party is entitled to file petition under Order 26 Rule 9

CPC. The Court below should have observed that the recording

of the physical features (i.e.) existence of hut and standing

crop are to be noted down. Therefore, he prayed to allow the

Civil Revision Petition.

5) Learned counsel for the Respondents submits that

the Court below rightly dismissed the application filed under

Order 26, Rule 6 of C.P.C. He contends that the suit was filed

in the year 2010 and was dismissed on 06.01.2018 and

immediately the appeal was filed. Either during the pendency

of the suit or during four years of pendency of the appeal, the

petitioners have not made any efforts and thought of getting

an Advocate Commissioner appointed. He further contends

that in a suit for a permanent injunction, the vital and

important issue is whether the plaintiff is in possession of the

schedule land. If at this stage an Advocate Commissioner is

appointed and filed his report, it would certainly amount to

introducing additional evidence, which is ordinarily not

permissible unless the proper application is made under Order

41 Rule 27 of C.P.C. Therefore, he prayed to dismiss the

present Civil Revision Petition.

6) Having heard both the learned counsel and upon

perusal of the material available on record, on careful perusal

of the order of the Court below, it is observed that as seen

from the affidavit filed in support of the petition, the

petitioners did not mention that the appointment of the

Commissioner is necessary to note down the physical features

and that the land of Damodara Reddy is two feet higher than

the suit land and that the land in Sy.No.241/A1 and 241/A

constitute a single plot and the existence of hut in the schedule

property. Thus during the course of arguments, the petitioners

have made improvements regarding the reliefs sought in the

petition. It is also observed by the Court below that thus, a

reading of Order 41, Rule 27 discloses that a party is not

entitled to produce additional evidence as a matter of right in

the appeal, and only in exceptional circumstances as envisaged

under Order 41, Rule 27, he is entitled to produce additional

evidence. The Court below also observed that the petitioners

failed to satisfy the conditions envisaged under Order 41 Rule

27 of C.P.C. So, the petitioners are not entitled to the relief as

prayed for.

7) In Penta Urmila vs. Karukola Kumaraswamy1,

this High Court at para No.5 held as extracted hereinunder:

"5. The above principles have to be applied to the facts of this case. The respondents 1 to 6 and another filed suit in 1988 for injunction. The suit was dismissed in December 2001 and the appeal was filed immediately thereafter in 2002. Either during the pendency of the suit or during the two years of the pendency of the appeal before the learned Senior Civil Judge, Sompeta, the plaintiffs never thought of getting Advocate

(2005) 2 ALD 130=(2005) 1 ALT 811

Commissioner appointed for verifying the features of the suit schedule land and defendants land with reference to FMB or other revenue records. In all probability, they entirely depended on the evidence they had let in the trial of the suit. They lost the suit, but still they were presumably confident of convincing the appellate Court with the evidence on record. At a later point of time when the appeal was coming for hearing, they filed I.A.No.87 of 2004 to bring in a report of advocate Commissioner noticing features of the land with reference to FMB."

8) The above said decision is squarely applicable to the

present facts and circumstances of the case, as the present

subject suit was filed in the year, 2010 and was dismissed on

06.01.2018 and immediately the appeal was filed. Either

during the pendency of the suit or during four years of

pendency of the appeal, the petitioners have not made any

efforts and thought of getting an Advocate Commissioner.

9) In view of the facts and circumstances of the case,

in our considered view, the learned II Additional District Judge,

Kurnool at Adoni, rightly dismissed the application filed by the

petitioners under Order 26, Rule 9 CPC. Therefore, there are

no merits in the present Civil Revision Petition to interfere into

the order, dated 07.04.2022 in I.A.No.79 of 2021 in A.S.No.4

of 2018 and as such, it is liable to be dismissed.

10) Accordingly, this Civil Revision Petition is dismissed.

11) There shall be no order as to costs.

As a sequel, miscellaneous petitions, if any pending, shall

stand closed.

                                  ______________________
                                  JUSTICE BATTU DEVANAND
Dt.      .08.2022
PGR





      THE HON'BLE SRI JUSTICE BATTU DEVANAND




               C.R.P.NO.1352 of 2022




                   Dt.       .08.2022




PGR