Andhra Pradesh High Court - Amravati
The Learned Counsel For The vs Medida on 27 March, 2023
HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI
MAIN CASE NO: CRP No. 797 of 2023
PROCEEDING SHEET
Sl. OFFICE
DATE ORDER
No. NOTE
01 27-03-2023 RC, J:
CRP No.797 of 2023
Notice before admission.
The learned counsel for the petitioner
is permitted to take out personal notice on
the respondents by registered post with
acknowledgment due and file proof of
service in the Registry.
Post on 10.04.2023.
____________
RC, J
I.A.No.1 of 2023
The learned counsel for the petitioner
would submit that in the suit filed by the
petitioner for permanent injunction, he filed
a petition vide I.A.No.837 of 2022 to appoint
an Advocate commissioner to note down the
physical features and also to measure the
sites of the plaintiff and defendants to fix
boundaries with the help of the Mandal
Surveyor. The Court below has dismissed the
said application erroneously, disregard to the
principle of law that evidence regarding
encroachment would only be available on
spot and no amount of oral evidence would
establish the fact and that when localization,
demarcation is involved, it is a fit case for
appointment of Advocate Commissioner even
in a suit filed for injunction and also in utter
ignorance of the fact that the report of the
commissioner would come in aid of the Court
for effective adjudication of the lis. The
learned counsel would further submit that
the petitioner has fair and better chances of
succeeding in this Civil Revision Petition. In
the event the suit is decided pending this
revision, the right of the petitioner to
effectively prosecute her case would be
jeopardized and the very purpose of this Civil
Revision Petition would be defeated. In
support of his contention, the learned
counsel for the petitioner relied on Bandi
Samuel and others vs. Medida
Nageswara Rao (2016 SCC OnLine Hyd
369) and has drawn attention of this Court to
para-20 of the said judgment.
Perused the material available on
record and the orders impugned in this Civil
Revision Petition. Para-20 of the decision
relied on by the learned counsel for the
petitioner reads as follows:
"20. In Bandaru Mutyalu supra referring to the
Division Bench expression of this Court in C.
Veeranna supra, that was placed reliance by
another Single Judge Bench expression of
Savitramma supra that in turn placed reliance to
the conclusion in saying there is no principle of
law or rule or provision that in a suit for bare
injunction, no commissioner can be appointed to
measure and demarcate the property so also
even at the initial stage before commencement of
trial, leave about even an ex parte advocate
commissioner can be appointed as held by the
Division Bench (supra) with no notice even
required for such appointment, but for referring
to Order XXVI Rule 18, requirement of notice only
for execution of the warrant by the commissioner
appointed even ex parte and thereby, all depends
upon the discretion of the Court from the factual
matrix of each case of any necessity to consider
either on the request of plaintiff or on the request
of the defendant or defendants as the case may
be. In Jammi Venkatakrishna Rao v. J.V.H.
Ravindranath, commissioner was held to be
appointed to note down existing physical features
which is not fishing of information. In Jajala
Mariadas v. Bodhala Aroghyam, it was observed
referring to the facts therein of the suit claim
relating to perpetual injunction and recovery of
possession by declaration of title by removal of
the so called encroachment of 91 square feet out
of that B schedule property and injunction
restraining interference for delivery in saying
plaintiff and defendant are neighbours and
defendant said to have encroached that portion
of the land belonging to the plaintiff. Evidence in
this regard of encroachment would only be
available on the spot and no amount of oral
evidence would establish the fact and for that
conclusion referred the earlier expressions in
relation to the nature of lis and requirement of
localization of the disputed property under
encroachment or otherwise, where demarcation
of the disputed property is involved it is a fit case
for appointment of Advocate Commissioner, as
held by the Apex Court in Haryana Waqf Board
supra, and same was followed in Smt. Donadulu
Uma Devi supra and there is no time limit for
appointment of Advocate Commissioner as even
an exparte Advocate Commissioner for
localization and noting of physical features can be
appointed at the time of filing suit and delay in
filing is otherwise not a ground to negate. It was
ultimately in saying evidence to prove allegation
of encroachment is of a peculiar nature which is
available on the spot and if Advocate
Commissioner is not appointed grave prejudice
would be caused and allowed that application."
The above observations would indicate
that there is no principle of law or rule or
provision that in a suit for bare injunction, no
commissioner can be appointed to measure
and demarcate the property so also even at
the initial stage before commencement of
trial.
The submissions made by the learned
counsel for the petitioner, the grounds raised
in the Civil Revision Petition and the
observations made in the decision relied on
by the learned counsel makes out a prima
facie point for determination in this Civil
Revision Petition. In the meantime, the suit
is proceeded and decided, the purpose of
filing this Civil Revision Petition would be
defeated. Hence, this Court is inclined to
pass the following order:
"there shall be interim stay of all further
proceedings in O.S.No.174 of 2014 on the
file of the Court of the learned Principal
Junior Civil Judge, Tiruvuru, for a period of
four (04) weeks.
____________
RC, J
RR
