Andhra Pradesh High Court - Amravati
P M Ramesh, Gudivada 1 Other vs S V Lakshmi Sai Ranga Rao, Eluru 1 ... on 6 October, 2023
1
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.R.P.Nos.3799 and 3783 of 2016
COMMON ORDER:
The Revision Petition No.3783 of 2016, under Article 227 of
the Constitution of India, is preferred against the order, dated
14.07.2016, in I.A.No.603 of 2016 in O.S.No.118 of 2013 on the
file of the Court of the IV Additional District Judge, Kakinada, (in
short 'the court below') which is filed under order 26, rule 9 and
Section 151 of C.P.C seeking to appoint an Advocate/
commissioner to measure the properties as per the documents
filed by the plaintiffs and defendants and to submit a report.
The Revision Petition No.3783 of 2016, under Article 227 of
the Constitution of India, is preferred against the order, dated
14.07.2016, in I.A.No.604 of 2016 in O.S.No.118 of 2013 on the
file of the Court of the IV Additional District Judge, Kakinada, (in
short 'the court below') filed under Order 14, Rule 1 and Section
151 of C.P.C seeking to frame the issues mentioned in the petition.
2. The petitioners herein are the plaintiffs before the court
below filed above two applications stating that while preparing for
the arguments it was found that two issues were not framed in the
suit, which are relevant and necessary to substantiate their case.
Further appointment of Advocate-commissioner is necessary to
measure the property as per documents. The court below holding
2
that it is for the petitioners to prove their possession over the
plaint schedule property through oral and documentary evidence.
Therefore, the advocate-commissioner need not be appointed at
belated stage and dismissed the both the applications. Assailing
the same, the present revisions came to be filed.
3. Since the facts and issue involved in all the Civil
Revision Petitions are one and the same, I find it expedient to
decide these revisions by a Common Judgment.
4. Heard Smt. R. Durga Latha, learned counsel, representing
Sri E.V.V.S.Ravi Kumar, learned counsel for the petitioners and
none represented for the respondents, though notices have been
served.
5. During hearing learned counsel for the petitioner would
mainly contend that the court below ought to have seen that by
appointing an advocate commissioner no prejudice will be caused
to the parties and ought to have seen that there is no bar for
appointing advocate commissioner in a suit filed for permanent
injunction. It is further contended that the issues mentioned in
the application are very much essential to substantiate the case of
the petitioners. The court below ought to have seen from that even
to decide the possession of the parties the court has to look into
the incidental title of the parties. But the court below erred in
dismissing the application on the ground that the issues are
within the ambit of the issues already framed. Therefore the
impunged orders of the court below are based on mere surmises
and not in accordance with law. Hence, the revisions are liable to
be allowed.
6. Perused the record.
7. It is only a bare injunction suit filed by the petitioners and
the petitioners have to succeed their case basing on their strength
and possession over the plaint schedule property and without
discharging that burden to cover the lacunas in the evidence as
contended by the respondents before the court below.
8. No doubt there is no bar for appointing advocate
commissioner in a suit for permanent injunction. But it cannot be
expected for convenience of the parties that too far end of the case.
In the instant case, the above suit is coming up for arguments, at
that juncture the two applications have been filed after getting
several adjournments. Though issues were framed and evidence
also adduced by both parties in respect of their contentions and in
view of the same, the court below after discussing the decisions
relied on by both the parties opined that there is no need or
necessity to appoint advocate commissioner at fag end of the suit
and also framing of issues is unwarranted, as such issues were
already framed. Therefore, the court below dismissed the
applications.
9. The two applications have been filed belatedly only to
gather evidence and to dodge the proceedings. Further the issues
were framed and evidence adduced by both the parties basing on
their respective contentions. When the suit was posted for
arguments, several adjournments were being granted and the
petitioners without arguing the suit and simply filed these two
applications at the stage of arguments is highly unwarranted.
Therefore I find any irregularity and impropriety in the impugned
order of the court below. Further I find no merit in the case of the
petitioners. Hence, the revisions are deserves to be dismissed.
10. In view of the aforementioned circumstances, both the
C.R.Ps are dismissed by a common order. There shall be no order
as to costs.
As a sequel, miscellaneous applications pending, if any,
shall also stand closed.
___________________________
DR.K.MANMADHA RAO, J
Date: 06.10.2023.
KK
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.R.P.Nos.3799 and 3783 of 2016
Date: 06.10.2023.
KK
