Gantipalli Raghavamma vs Allipalli Nookaratna ...
2022 Latest Caselaw 6277 AP

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

       CIVIL REVISION PETITION Nos. 564 and 607 of 2022


COMMON ORDER:


       Since both the revision petitions arose out of a common order

dated 10.03.2021 passed by the learned II Additional Senior Civil Judge,

Kakinada, in I.A.Nos.197 of 2020 and I.A.No.205 of 2018 in

O.S.No.178 of 2018, I deem it appropriate to dispose of these two

revision petitions by way of this common order.

2.     Heard Sri P. Rajasekhar, learned counsel for the petitioner, and

Sri A.S.C. Bose, learned counsel for the respondent. Also perused the

record.

3.     Facts

of the case are that the petitioner filed a suit in O.S.No.178

of 2018 on the file of the II Additional Senior Civil Judge at Kakinada,

for a mandatory injunction directing the respondent to remove the

constructions made in the plaint schedule property within the time fixed

by the Court and in default through process of law; for a permanent

injunction restraining the respondent, her henchmen and followers from

ever interfering with the petitioner's property; and for costs of the suit.

It was stated in the plaint that the petitioner purchased an extent of 13.69

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square yards of vacant site i.e., plaint schedule property out of 55.00

square yards of site from one Dommeti Fathima under a registered sale

deed dated 22.02.2018. When the respondent attempted to make

construction by digging pits for laying foundation in the plaint schedule

property, the petitioner got issued a legal notice dated 24.02.2018.

However, the respondent did not stop the illegal construction. Hence,

the petitioner is constrained to file the suit. Subsequently, the petitioner

filed an application in I.A.No.205 of 2018 seeking appointment of an

Advocate Commissioner to localise the plaint schedule property as per

the documents of both parties and to note down the physical features

including the stage of construction being made by the respondent. The

respondent filed a counter to said I.A.No.205 of 2018 opposing the

appointment of Advocate Commissioner. The respondent also filed a

written statement in the suit denying the allegations made in the plaint

and contending that she is the owner of the plaint schedule property

having purchased the same from one Mylapalli Rajeswari under a

registered sale deed dated 10.12.1998 vide document No.7767 of 1998.

Thereafter, the respondent also filed an application being I.A.No.197 of

2020 for appointment of an Advocate Commissioner to note down the

physical features of the properties of both the parties in respect of their

documents and to file a report into Court. The petitioner filed a counter

NV,J C.R.P.Nos.564 & 607 of 2022

to I.A.No.197 of 2020 opposing the appointment of Advocate

Commissioner. The lower Court clubbed both the applications and

passed a common order dated 10.03.2021 appointing an Advocate

Commissioner. Challenging the same, the petitioner approached this

Court by filing these two revision petitions.

4. Learned counsel for the petitioner/plaintiff would contend that

the respondent committed breach of injunction order granted in the suit

and highhandedly made construction in the plaint schedule property.

After completing the construction, in order to overcome the petition

filed by the petitioner for violation of injunction order, the respondent

filed I.A.No.197 of 2020 seeking appointment of Advocate

Commissioner. The learned counsel would contend that the physical

features appearing as on the date of filing of I.A.No.205 of 2018 filed by

the petitioner and as on the date of filing of I.A.No.197 of 2020 filed by

the respondent do not tally because of the construction made by the

respondent. The learned counsel contend that having failed to consider

I.A.No.205 of 2018 filed at the time of filing of the suit, the lower Court

should not have appointed the Advocate Commissioner. The learned

counsel would contend that the appointment of the Advocate

Commissioner at a belated stage i.e., after three years from the date of

filing of I.A.No.205 of 2018 and after the respondent made construction

NV,J C.R.P.Nos.564 & 607 of 2022

in violation of the injunction order and filed I.A.No.197 of 2020,

defeated the very object of getting best evidence before the Court. In

support of his contentions, the learned counsel placed reliance on the

decision of the learned Single Judge of this Court in N. Savitramma Vs.

B. Changa Reddy1. He, therefore, prays to allow both the revision

petitions by setting aside the impugned order.

5. Per contra, learned counsel for the respondent/defendant would

submit that as the petitioner also sought for appointment of Advocate

Commissioner by way of I.A.No.205 of 2018, the lower Court passed

the impugned order in both the applications. Further, the Advocate

Commissioner has already executed the warrant and filed a report before

the lower Court and at this juncture, the order impugned in the revision

petitions cannot be interfered with. The learned counsel would submit

that the lower Court did not commit any error in appointing the

Advocate Commissioner warranting interference. There are no merits in

the revision petitions and they are liable to be dismissed.

6. The petitioner filed a suit in O.S.No.178 of 2018 on the file of the

II Additional Senior Civil Judge at Kakinada against the respondent for

a mandatory injunction and for a permanent injunction. Along with the

suit, the petitioner filed I.A.No.205 of 2018 seeking appointment of an

(1988) 1 ALT 353=(1988) 1 APLJ 45

NV,J C.R.P.Nos.564 & 607 of 2022

Advocate Commissioner to localise the plaint schedule property as per

the documents of both parties and to note down the physical features

including the stage of constructions being made by the respondent. It is

the case of the petitioner that she purchased an extent of 13.69 square

yards of vacant site i.e., plaint schedule property out of 55.00 square

yards of site from one Dommeti Fathima under a registered sale deed

dated 22.02.2018. Whereas the case of the respondent is that she is the

owner of the plaint schedule property having purchased the same from

one Mylapalli Rajeswari under a registered sale deed dated 10.12.1998

vide document No.7767 of 1998. Thereafter, the respondent also filed

I.A.No.197 of 2020 for appointment of an Advocate Commissioner. The

lower Court clubbed both the applications and passed the impugned

order appointing the Advocate Commissioner.

7. As seen from the record, the respondent filed counter to

I.A.No.205 of 2018 opposing the appointment of Advocate

Commissioner. Thereafter, the respondent herself filed I.A.No.197 of

2020 with the same prayer. This makes it clear that the respondent came

to the Court with unclean hands. Taking into consideration the

indifferent attitude of the respondent and taking into consideration the

fact that both the applications were opposed by way of counters, in my

considered view, the lower Court should not have entertained

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I.A.No.197 of 2020 filed by him, having failed to consider I.A.No.205

of 2018 filed by the petitioner for a period of three years. Further, the

lower Court ought to have entertained the application of the petitioner

filed at the time of filing of the suit, as it is the allegation of the

petitioner that the respondent is attempting to make construction by

digging pits for laying foundation in the plaint schedule property,

because it would be easy to localize the schedule property at that stage.

8. The petitioner filed counter to I.A.No.197 of 2020 denying the

allegations made therein and opposing the appointment of Advocate

Commissioner. In the counter it was alleged that even though there are

interim orders against the respondent, the respondent highhandedly

made construction in the plaint schedule property; and that the petitioner

filed a petition under Order 39 Rule 2-A of CPC for disobedience of the

orders of the Court and the same is pending. Refuting the same, the

respondent did not file any reply to the counter of the petitioner. From

the above, it is obvious that after completing the construction in

violation of the injunction orders, the respondent filed I.A.No.197 of

2020 belatedly; and that the physical features appearing as on the date of

filing of I.A.No.205 of 2018 and as on the date of filing of I.A.No.197

of 2020 do not tally and would be different, as contended by the learned

counsel for the petitioner.

NV,J C.R.P.Nos.564 & 607 of 2022

9. In support of his contention that if the physical features of the

plaint schedule property as on the date of the suit are allowed to be

obliterated and a Commissioner is appointed after several years or at the

end of trial or during trial, the very object of getting the best evidence

before the Court would be frustrated, the learned counsel for the

petitioner relied upon the proposition of law laid by the learned Single

Judge of this Court in N. Savitramma Vs. B. Changa Reddy2, wherein

at Paras 9 and 12 it is observed as under:

"Para 9 - The submission that commissioner should not be appointed for noting such physical features till after the evidence is led, cannot be accepted. P.N.Ramaswamy, J pointed out in Inre P. Moosa Kutty (3) AIR 1953 mad P 717 that the very purpose of appointing a commissioner may sometimes frustrated, is such appointment is postponed till after the trial. Whether on account of the acts of the opposite party or on account of the natural causes, the physical features obtaining on the land or property as on the date when the plaint is filed, may be obliterated. The learned Judge observed: "if a commission is not going to be issued until the defendant appears, most often there will be no point in taking out a commission, because the object of the commission itself would be lost and incriminating circumstances would be obliterated".

The above observations in my view, are extremely

(1988) 1 ALT 353=(1988) 1 APLJ 45

NV,J C.R.P.Nos.564 & 607 of 2022

important. Take the case where a plaintiff alleges that a particular bund had been removed or a new wall has been constructed or a channel has been closed suddenly or a new window has been opened or a new fencing has been put up. If the trial in such cases were to take place years after the filing of the suit, it would be difficult to get at the nature of the physical features obtaining on the date of the suit. It has, therefore, been held in several cases that either party to the suit could have a commissioner appointed even before the trial. It has even been held that a plaintiff could have a commissioner appointed for local investigation even exparte on the date of the suit.

............. ....... ..............

Para 12 - In my view, the above observations of Lakshminarayana Reddy, J in the two decisions are not only widely stated but also run contrary to the judgment of the Division Bench of this court in Veeranna's case and two other cases referred to by me. I, therefore, dissent from the learned Judge and follow the Division Bench. Further, to say that it is "unthinkable" that a receiver could be appointed to note the physical features of any property, appears to me to be an extreme view, the plaintiff could, in my view, certainly take the assistance of the court to have the physical features of property noted by an officer of the court namely, an Advocate-

commissioner before the said features are obliterated either by the opposite party or by the vagaries of the

NV,J C.R.P.Nos.564 & 607 of 2022

nature. If the physical features of the land as on the date of the suit are allowed to be obliterated and a commissioner is to be appointed several years after the filing of the suit or at the end of the trial or during the trial, the very object of getting the best evidence before the court would be frustrated. That would enable the defendants in the suit to take advantage of their might and alter the physical features of the land and also protract the trial till such time that those features were obliterated by lapse of time or by the defendants action............. .............."

10. In the facts and circumstances of the case, this Court is of the

considered opinion that the decision relied on by the learned counsel for

the petitioner is applicable to the facts of the instant case and the

impugned order warrants interference.

11. For all the aforesaid reasons, both the Civil Revision Petitions are

allowed and the impugned order passed by the lower Court is set aside.

The report of the Advocate Commissioner dated 24.01.2022 shall be

ignored. No order as to costs. Consequently, miscellaneous applications,

if any, pending shall stand closed.

____________________________________ VENKATESWARLU NIMMAGADDA, J 7th September, 2022 cbs

NV,J C.R.P.Nos.564 & 607 of 2022

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

CIVIL REVISION PETITION Nos. 564 and 607 of 2022

7th September, 2022 cbs