Nalla Wilson And Another vs Beldi Rani And Another
2022 Latest Caselaw 7141 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


          CIVIL REVISION PETITION NO.3053 OF 2022


                              ORDER

This Revision Petition is filed by the petitioners who are the

plaintiffs in O.S.No.1033 of 2022 challenging the order of the Principal

Junior Civil Judge-cum-Judicial Magistrate of First Class at Jangaon

dt.12.12.2022 in I.A.No.1078 of 2022 in I.A.No.866 of 2022 in

I.A.No.616 of 2022 in O.S.No.1033 of 2022.

2. The learned counsel for the petitioners, Sri B.Shanker, submitted

that the suit has been filed for permanent injunction against the

respondents/defendants and ad interim injunction was granted in favour

of the petitioners, vide orders in I.A.No.616 of 2022. The

respondents/defendants have filed a stay vacate petition in I.A.No.866 of

2022. The petitioners filed I.A.No.1078 of 2022 in I.A.No.866 of 2022

for appointment of an Advocate Commissioner to verify the existence of

a 'Four Wheel Garage shed' in the suit 'A' schedule property and

submit a report thereon. The plaintiffs were claiming that since the

purchase of the property, their father had established the Garage by

name 'Four Wheel Garage' and was in possession of the same. The said C.R.P.No.3053 of 2022

Application has been opposed by the respondents and after considering

the arguments of both the parties, the Civil Court has dismissed the said

Application. Against the said order, the present CRP is filed.

3. The respondents have filed a caveat petition and therefore, the

learned counsel representing the respondents has also been heard at the

admission stage itself.

4. While the learned counsel for the petitioners relied upon the

averments made in the affidavit filed in support of the petition, he also

placed reliance upon the following two decisions:

(1) Phoolchand Asra Vs. Nagar Palika Nigam Raipur and

others1.

(2) Bommireddy Tirupathi Reddy Vs. Dokka Kondamma

and others2.

He submitted that where there is a dispute of fact and the same can be

elucidated by examination by a Commission, then appointment of an

Advocate Commissioner is justified.

Writ Petition (227) No.821 of 2019 of the High Court of Chhattisgarh, Bilaspur dt.09.09.2022.

Civil Revision Petition No.944 of 2018 of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh dt.06.07.2018.

C.R.P.No.3053 of 2022

5. Learned counsel for the respondents, Sri G. Anandam, on the

other hand submitted that the suit is still at trial stage and the suit is for

injunction and therefore appointment of an Advocate Commissioner at

this stage is not warranted and that it is filed only to protract the stay

vacate petition filed by the respondents. In support of his above

contention, he placed reliance upon the judgment of this Court in the

case of Koduru Sesha Reddy Vs. Gottigundala Venkata Rami

Reddy and others3.

6. Having regard to the rival contentions and the material on record,

this Court finds that the issue in this CRP is only with regard to

necessity of appointing an Advocate Commissioner at the stage of

considering the stay vacate petition filed by the respondents. The

petitioners/plaintiffs have already been granted ad interim injunction.

The petitioners are claiming possession over the property and in proof of

the same, it is submitted that their father had purchased the property and

constructed a shed by name 'Four Wheel Garage' and he was in

possession of the same till his death and thereafter, the plaintiffs are in

possession of the same. They have requested for appointment of an

Advocate Commissioner only to verify whether there is a Four Wheel

2006 (1) ALD 372 C.R.P.No.3053 of 2022

Garage in the suit schedule property. This cannot be said to be dilatory

tactics. If there is a need for a factual verification, this Court is of the

opinion that there cannot be any reason for not appointing an Advocate

Commissioner to verify the same. The judgments relied upon by the

learned counsel for the petitioners support this stance of this Court. For

the purpose of ready reference, the relevant paragraphs of the said

judgments relied upon by the petitioners are extracted hereunder:

In the case of Phoolchand Asra Vs. Nagar Palika Nigam

Raipur and others (1 supra), the Hon'ble High Court of Chhasttisgarh,

Bilaspur has held as follows:

10. Under Order 26 Rule 9 of C.P.C., the court itself can exercise the power or in order to elucidate the disputed fact, and on the question of encroachment and location/identification of land on an application filed by the parties. More so when there is no agreed map between the parties, the Municipal Corporation or Municipal Council or Panchayat can enter into dispute and decide the same by placing correct position of the parties. A plain reading of the provision says that the power can be exercised at any stage. Basic purpose to exercise power under Order 26 Rule 9 of C.P.C. is to separate the wheat from chaff and in cases where it is necessary to elucidate the relevant facts, the Court can exercise its powers. It must be remembered that the procedural law is made to advance the cause of justice and not to strangulate the litigant on hyper technical grounds. In Order 26 Rule 9 of C.P.C. the word used is - "elucidate" and its meaning as per Websters Dictionary is "to make light or clear, to C.R.P.No.3053 of 2022

explain, to remove obscurity from and render intelligible, to illustrate." According to Chambers Dictionary, "elucidate" means to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory."

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

14. Now coming to the facts of the present case, there is dispute regarding flow of drainage water. According to the petitioner/plaintiff, there is an encroachment over the drainage and which causes obstruction in the smooth flowing of drainage water, whereas respondent No.3 has stated that there is no encroachment and due to garbage/polythene, papers, waste materials, drainage is blocked. In view of the disputed facts which in my opinion cannot be ascertained without local inspection or without making local investigation and further considering the judgments passed by the various High Courts and the Hon'ble Supreme Court, the learned trial Court ought to have allowed the application moved by the plaintiff/petitioner under Order 26 Rule 9 of C.P.C."

In the case of Bommireddy Tirupathi Reddy Vs. Dokka

Kondamma and others (2 supra), the Hon'ble High Court of Judicature

at Hyderabad for the State of Telangana and the State of Andhra Pradesh

has held as under:

"6. In the considered view of this Court, in the circumstances stated by the defendant, the appointment of a Commissioner would subserve the ends of justice, as, according to the defendant, the entire extent of A.3.00 cents of land of the defendant, out of which Ac.0.50 cents, which is included in the plaint schedule, is fenced with closed planted teakwood plantation as a hedge and that it is forming a boundary or fence and that the lemon trees in the entire garden, C.R.P.No.3053 of 2022

which are in the entire Ac.3.00 cents of land, including the Ac.0.50 cents, which the defendant is claiming as his, are of the same age and that the physical features would establish the pleaded defence, which the defendant intends to establish to succeed in the suit. Be it noted that there is no hard and fast rule that in no suit for perpetual injunction, a commission shall be issued though it is true that a commission cannot be issued for ascertaining as to who among the parties is in possession, as such a function being a judicial function cannot be delegated. It is now well settled that appointment of a commissioner for noting down the physical features cannot be termed as collection of evidence. Further, the evidence, which the commissioner gathers by noting down the physical features of the properties, cannot otherwise be procured. If the Commissioner appointed makes a local inspection and notes down the physical features of the properties and files a report, the said report and the evidence he may give, based on his report, if he is examined before the trial Court, would perhaps enable the trial Court to better appreciate the other evidence that may be let in by the parties during the course of trial. In that view of the matter and for the above stated reasons, this Court finds that the defendant made out valid and sufficient grounds for issuance of a commission and that, therefore, the order impugned is liable to be set aside being unsustainable."

7. In the decision relied upon by the learned counsel for the

respondents in the case of Koduru Sesha Reddy Vs. Gottigundala

Venkata Rami Reddy and others (3 supra), it was held that in suits for

perpetual injunction, appointment of a Commissioner to note down the

physical features cannot precede the recording of evidence and the C.R.P.No.3053 of 2022

parties have to adduce their evidence in support of their respective

contentions as to possession and thereafter, the Court would be justified

to appoint Commissioner, only if it feels that the evidence on record is

not sufficient for recording a finding, for the purpose of granting or

refusing the relief of injunction. In the said case, the trial is yet to

commence and the Court has held that appointment of Advocate

Commissioner at that stage was not justified. In the case before this

Court also, the trial is yet to commence though the respondents have

filed their written statement denying the existence of the Four Wheel

Garage.

8. The judgment relied upon by the learned counsel for the

petitioners in the case of Bommireddy Tirupathi Reddy Vs. Dokka

Kondamma and others (2 supra) and also the decision relied upon by

the learned counsel for the respondents in the case of Koduru Sesha

Reddy Vs. Gottigundala Venkata Rami Reddy and others (3 supra)

are both relating to the Hon'ble High Court of Andhra Pradesh and the

decision in the case of Bommireddy Tirupathi Reddy Vs. Dokka

Kondamma and others (2 supra) being the latest judgment and being

decided in similar circumstances has to be followed.

C.R.P.No.3053 of 2022

9. In view of the same, the order dt.12.12.2022 in I.A.No.1078 of

2022 in I.A.No.866 of 2022 in I.A.No.616 of 2022 in O.S. No.1033 of

2022 on the file of the Principal Junior Civil Judge-cum-Judicial

Magistrate of First Class at Jangaon is set aside and the Civil Court is

directed to appoint an Advocate Commissioner from amongst the

Advocates available and issue a warrant to the Commissioner with

necessary directions and by fixing a date for submission of the report.

10. The Civil Revision Petition is accordingly allowed. No order as to

costs.

11. Pending miscellaneous petitions, if any, in this CRP shall stand

closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 30.12.2022 Svv