Telangana High Court
M/S India Media Services Pvt Ltd vs B. Vijay Kumar on 22 February, 2022
Bench: Ujjal Bhuyan
1
THE HON'BLE SRI JUSTICE UJJAL BHUYAN
CIVIL REVISION PETITION No.305 OF 2022
ORDER:
Heard Mr.B.Arvind Reddy, learned counsel for the petitioner.
2 Petitioner is the plaintiff in O.S.No.1682 of 2012 on the file of the
Court of learned X Junior Civil Judge, City Civil Court, Hyderabad. The
said suit has been filed by the petitioner seeking a decree of perpetual
injunction against the defendants from inducting third parties into the suit
schedule property and also from encroaching into the common areas.
3 Petitioner also filed an Interlocutory Application, being I.A.No.372 of
2012, under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC),
for appointment of an advocate commissioner to make local investigation of
the suit schedule property and thereafter to submit his report. By the
order dated 20.11.2013, learned X Junior Civil Judge, City Civil Court,
Hyderabad, dismissed the said Interlocutory Application.
4 Hence the present revision petition.
5 Learned Court below held as follows:
"This is a suit filed for seeking relief of perpetual injunction restraining the
defendants (who are admitted to be in possession of suit schedule property) and
their men from inducting third parties into the suit schedule property and
further from encroaching common areas i.e. left for roads, footpaths, pathways
and the open area in the suit property.
Hence, the fact in issue in the present suit is whether the respondents being
the tenants of the petitioner as alleged by the petitioner are trying to induct third
parties into the suit schedule property and further are trying to encroach the
common areas. Hence, the relief sought by the petitioner to appoint an advocate
commissioner to note down the area in occupation of the respondents is not
maintainable as the burden lies on the petitioner to prove the same before the
court.
It is the case of the respondents that neither the petitioner nor his
predecessor was in possession and enjoyment of the suit schedule property at
any point of time, and the same was upheld in the judgments in OS 1062/80
and OS 579/93. The present petition is not maintainable as the same amounts
to collection of evidence if allowed.
This Court come across the following decisions reported in: 1) 1998 (3) ALT
473 (Bongu Ramulu & Another Vs. Gudur Narender Reddy) wherein it is held
that - Though the petitioners stated that the purpose of appointment of an
Advocate Commissioner is to verify as to who is in actual possession of the suit
property and also to note down the physical features of the suit land, no reason or
purpose has been stated in the affidavit filed in support of the petition as to why
the physical features should be noted by the commissioner nor there is any
allegation that the respondent - plaintiff having filed the suit, is trying to change
the nature of the property or indulging or damaging or wasting the suit property.
(ii) 2004 (5) ALD 388 (Arredla Ram Reddy and Otehrs Vs. Arredla Alivelamma)
wherein it is held that - ... It is true that appointment of commissioner under
Or.26 CPC is not confined to any particular circumstances. Depending on the
necessity in a suit, Commissioners can be appointed, even to note down the
physical features. This however would depend on the nature of relief claimed in
the suit. When the physical features of the suit schedule property are of hardly of
any relevance, in a suit for permanent injunction, the necessity to appoint a
commissioner does not arise,. The resultant report is prone to be used as a
material, to support the plea of possession etc., Such a course of action is
impermissible in law."
Thus, even in the present case on hand, it is the grievance of the petitioner
that the respondents are encroaching the common areas of the suit property and
are trying to induct third parties. The petitioner has to prove the same along
with his right and title over the said property with sufficient oral and
documentary evidence.
Moreover, the relief sought by the petitioner through the present petition, i.e.,
to know the exact area in occupation of the respondents amounts to collection of
evidence and it is settled law that the petitioner / plaintiff has to prove his own
case and cannot request the court to appoint an advocate commissioner to
gather evidence for his case. Thus an advance commissioner cannot be
appointed for collection of evidence.
In the result, petition is dismissed. No costs."
6 First and foremost, the impugned order is dated 20.11.2013. The
Civil Revision Petition under Article 227 of the Constitution of India has
been preferred after more than eight years. Though there may not be any
limitation for filing application under Article 227 of the Constitution of
India, nonetheless, there is considerable delay in filing the revision petition.
There is no explanation for such inordinate delay. That apart, Court finds
no error or infirmity in the view expressed by the learned Court below.
7 This revision petition is not only misconceived but is also a clear
abuse of the process of the Court.
8 Therefore, both on the point of limitation as well as on merit, the Civil
Revision Petition is dismissed with costs of Rs.5,000-00 (Rupees Five
Thousand only) to be deposited by the petitioner with the Telangana State
Legal Services Authority within thirty days from today.
9 Miscellaneous petitions, if any, pending in this Civil Revision Petition
shall also stand dismissed.
___________________________
JUSTICE UJJAL BHUYAN
22.02.2022
Kvsn
