Andhra Pradesh High Court - Amravati
Gompa Veera Venkata ... vs Sai Tyre Retraders on 15 February, 2023
Bench: K Manmadha Rao
sON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL REVISION PETITION No.3260 of 2019
ORDER :
This Civil Revision Petition is filed by the petitioner
against the Order and decree, dated 25.10.2019 passed in
I.A.No.272 of 2019 in O.S.No.1560 of 2014 on the file of the
IV Additional Senior Civil Judge (FTC), Visakhapatnam.
2. Petitioners are the plaintiffs and the respondents
are defendants in O.S.No.1560 of 2014 which was filed for
declaration with regard to easementary right over B
Schedule property and for a consequential relief of
permanent injunction. During pendency of the suit, the
petitioners/ plaintiffs preferred the present impugned
I.A.no.272 of 2019 under Order XXVI Rule 9 read with
Section 151 CPC to appoint an Advocate Commissioner to
note down the physical features of plaint schedule
properties.
3. Heard Mr. V. Subrahmanyam, learned counsel
appearing for the petitioners. Perused the material
available on record.
4. A perusal of the material on record, it appears
that the petitioners/plaintiffs are absolute owners of
plaint A schedule property surrounded on all sides by
land of third parties and to the further North of A
schedule property there is a 60ft road situated after a
small strip of land of 2nd respondent which connects to
National Highway on the further East. There is no way to
plaint A schedule property except through the land of
respondents which adjoins A schedule property on
Northern side. Therefore, learned counsel for the
petitioners submits that it is necessary to appoint a
commissioner to note down the physical features of plaint
A and B schedule properties otherwise the petitioners/
plaintiffs will put to immense loss.
5. Learned counsel for the respondents while
denying all the allegations made in the petition
contending that the petitioners have already let in their
evidences and they cannot establish through an Advocate
Commissioner and even otherwise for gathering of
evidences or for collection of evidences, an Advocate
Commission cannot be appointed.
6. There is no dispute between the
petitioners/plaintiffs and respondent No.2/2nd defendant
that there exists 60 ft road on the Northern side and the
controversy between the parties is whether the said 60 ft
road is formed by Visakhapatnam Municipal Corporation
and the same is in existence since time immemorial or the
same is part of layout. Further, the 2nd respondent/2nd
defendant has also got filed layout plan and delivery
receipts through which possession was handed over in IA
No.276/2019 which are even required to elicit truth
according to petitioners/plaintiffs. For the purpose of
deciding whether the plaintiff is having easementary right
over said 60 ft road by way of necessity or by prescription
for ingress and egress to reach A schedule property or not
an Advocate Commissioner need not be appointed.
7. In case of Mohammed Jaffer Abdul Qadeer
Qureshi versus Aziz-ur-Rehman Qureshi and others1,
wherein the High Court of Judicature for the State of
Telangana and the State of Andhra Pradesh held that :
2016(3) Andh LD 38
Dealing next with the contentions that a Commissioner cannot be
appointed for gathering evidence and that the existence or otherwise of a
road, which is borne out by the Hiba and the surveyors report, can be
proved by adducing oral evidence by both the sides and that, therefore,
the commissioner cannot be appointed, what is to be noted is that the law
is well settled that for noting down physical features a Commissioner can
be appointed. The existence or otherwise of a road, which is being
described as C schedule property, is a physical feature is not in dispute.
Therefore, this contention has no substance.
Dealing lastly with the contention that the report of the
Commissioner is not going to serve any purpose, be it noted that issuance
of Commissions is dealt with in Section 75 of the Code, which deals with
Incidental Proceedings; whereas the other interlocutory proceedings like
grant of temporary injunctions and appointment of receivers etcetera are
dealt with in Section 94 of the Code which deals with Supplemental
Proceedings. Supplemental proceedings are separate proceedings in a
Original action, in which the Court is called upon to exercise jurisdiction
in aid of the judgment in action. Incidental Orders are those, which follow
as a matter of course being necessary complements in the main order
without which the matter would be incomplete or ineffective. [Vide M A
Mohamed Ali v. R Ramadoss (AIR 1966 Madras 441)]. Thus, incidental
orders are complementary in nature and are intended to assist the Court
in arriving at a just decision in the lis unlike supplemental orders. The
request for appointment of a commissioner for noting down the physical
features of a property, in the well considered view of this court, by no
stretch of imagination can be called as an attempt to gather evidence. The
court below having noted that the claim of the plaintiff is that the entire
property is divided as A to G parts and that out of that A to G, C schedule
property is a road carved out and that the plaintiff also relies upon a plan
to that effect and that in turn the defendants are contending that there is
no road in existence as claimed by the plaintiff, had eventually appointed
a commissioner while observing that there are no tenable objections in the
counter and that no prejudice would be caused if a commissioner is
appointed.
8. In another case reported in Jajula Koteshwar
Rao versus Ravulapalli Masthan Rao2, wherein, wherein
the High Court of Judicature for the State of Telangana
and the State of Andhra Pradesh held that :
The object of the local investigation under Order XXVI Rule 9 CPC is to
collect evidence at the instance of the party who relies on the same and which
evidence cannot be taken in Court but can be taken only from the peculiar nature,
on the spot. The Commissioner in effect is a projection of the Court appointed for
a particular purpose. The law of evidence enjoins upon a party to prove the fact
which he relies on and in that sense, an obligation is cast upon the party; and if
he fails to discharge that obligation, adverse consequence will follow and he will
have to face the repercussions of the same. This right of the party to adduce
evidence gets adjudicated in the interlocutory proceedings under order XXVI Rule
9 CPC.
9. The present I.A was not filed to collect evidence.
In fact, since the nature of relief sought for appointment
of an Advocate Commissioner to note down the physical
features and to draw a plan with regard to location, the
report of the Advocate Commissioner will help the Court
in deciding the lis between the parties judiciously.
10. Having regard to the facts and circumstances of
the case and on considering the submissions, it is
observed that when there is no dispute with regard to
Law Finder Doc Id# 721972
identity of land, if an advocate commissioner is appointed,
it amounts to collection of evidence for a party.
Furthermore, this Court in a catena of judgments held
that the local investigation under Order XXVI Rule 9 CPC
is only for the purpose of collection of evidence at the
instance of a party, who relies on the same and which
evidence cannot be taken in the Court but it can be taken
only from the peculiar nature, on the spot. Further, the
Commissioner in effect is the projection of the Court
appointed for a particular purpose. It is well settled that
the law of evidence enjoins upon a party and if fails to
discharge that obligation adverse consequences will follow
and he will have to face the repercussions of the same.
This right of party to adduce evidence gets adjudicated in
the Interlocutory Application proceedings under Order
XXVI Rule 9 CPC.
11. In that view of the matter, this Court constrains
to dispose of the present revision petition by setting aside
Order and decree, dated 25.10.2019 passed in I.A.No.272 of
2019 in O.S.No.1560 of 2014 on the file of the IV Additional
Senior Civil Judge (FTC), Visakhapatnam, dismissing the
application for appointment of an Advocate
Commissioner. Further, the concerned learned judge is
directed to appoint an Advocate Commissioner to note
down the physical features of the petition schedule
properties, within a period of three (03) weeks from the
date of receipt of a copy of this order and also directed to
dispose of the suit in O.S.No.1560 of 2014, within six (06)
months from the date of receipt of a copy of the
Commissioner report.
12. With the above observation, the Civil Revision
Petition is disposed of. There shall be no order as to
costs.
As a sequel, all the pending miscellaneous
applications shall stand closed.
______________________________
DR. K. MANMADHA RAO, J.
Date : 15 -02-2023
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HON'BLE DR. JUSTICE K. MANMADHA RAO
CIVIL REVISION PETITION No.3260 of 2019
Date : 15 .02.2023
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