Modugula Penchalaiah vs Avula Vijayalakshmi
2022 Latest Caselaw 2413 AP

     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

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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

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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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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

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

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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

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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

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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

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