Telangana High Court

Thalasani Ram Reddy vs Prodhutoori Chandra Shekar on 2 August, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

          CIVIL REVISION PETITION No.1767 of 2024

ORDER:

Aggrieved by the dismissal order dated 23.04.2024 in

I.A.No.241 of 2023 in I.A. No. 1166 of 2022 in O.S.No.394 of 2022

(hereinafter will be referred as 'impugned order') passed by the

learned Junior Civil Judge, Kalwakurthy, the defendants have filed

the present Civil Revision Petition to set aside the impugned order.

2. The brief facts of the case are that the plaintiffs have filed

O.S.No.394 of 2022 on the file of learned Junior Civil Judge,

Kalwakurthy for perpetual injunction against the defendants in

respect of the suit schedule property. Apart from the suit, the

plaintiffs have also filed I.A.No.1166 of 2023 under Order XXXIX

Rules 1 and 2 of the Code of Civil Procedure seeking temporary

injunction in respect of the suit schedule property. During the

pendency of the suit, the defendants have filed I.A.No.241 of 2023

by invoking Order XXVI Rule 9 read with Section 151 of the Code

of Civil Procedure to appoint Advocate Commissioner to note down

the physical features of suit land in Sy.No.159/UU/1 and 160/A/1

admeasuring Ac.3.35 guntas and Ac.0.19 guntas respectively

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situated at Ippahad Village, Urukonda Mandal, Nagarkurool and

their land in Sy.No.157 situated in the same surroundings.

However, the learned Trial Court Judge has dismissed the said

petition on the ground that appointment of Advocate

Commissioner would amount to collection of evidence. Aggrieved

by the same, the defendants have preferred the present Civil

Revision Petition to set aside the impugned order.

3. Heard learned counsel for the revision petitioners and

perused the record.

4. The learned counsel for the revision petitioners has

submitted a memo, wherein it was stated that in compliance with

the orders of this Court dated 14.06.2024 and 21.06.2024, they

have sent personal notices to the plaintiffs by registered post to the

address mentioned in the plaint, however, the plaintiffs got the

said notices returned with postal endorsement that "LEFT" and

"Insufficient Address" respectively. It is further submitted that

notice was sent to the counsel appearing for the plaintiffs before

the trial Court and as per the postal track report, the said notice

was served on the counsel for the plaintiffs by name Venkat Goud

before the trial Court. When a notice sent to the address

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mentioned in the cause title and the same has been returned as

"left", it is deemed to be a proper service as per the provisions of

General Clauses Act. Furthermore, as stated supra, notice was

also sent to the learned counsel appearing for the plaintiffs before

the trial Court. Hence, the arguments on behalf of the plaintiffs

are treated as 'nil'.

5. The contention of the defendants is that their land in

Sy.No.157 and the suit land in Sy.No.160 are abutting to each

other and the land of defendants in Sy.No.157 is existing towards

southern side of the plaintiffs in sy.No.160. It is further contended

that the plaintiffs have filed false sketch map along with the plaint

suppressing real facts showing existence of road in the suit land

even though it is not existing in the suit survey numbers with an

intention to grab the northern part of defendants land in

Sy.No.157. It is further contention of the defendants that on the

application of the defendants, the Deputy Inspector of the Survey,

Revenue Divisional Office, Kalwakurthy fixed the boundaries in

respect of the suit land and also in respect of lands of the

defendants in Sy.No.157 and as per the said survey the road is not

existing towards southern side of the suit land as shown in the

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plaint. Thus, as per the contention of the defendants, the said

road which is passing through the land of the defendants is

dividing the land into two pieces and the plaintiffs based on the

false sketch map are trying to occupy Ac.0.20 guntas of land

towards north-west part. Hence, the intention of the defendants

intended is to appoint an Advocate Commissioner so as to note

down the physical features of suit land as well as the land of the

defendants and thereby resolve the dispute between the parties.

6. On the other hand, the plaintiffs contended that there is no

material on record that the Mandal Surveyor and Deputy Inspector

of Survey have not measured the land properly, as such Advocate

Commissioner cannot be appointed for the same purpose in

respect of suit schedule property. It is further contended that it is

premature stage to appoint Advocate Commissioner to observe the

physical features of the suit properties and the same amounts to

collection of evidence.

7. The learned counsel for the defendants contended that it is

settled law that appointment of Advocate-Commissioner in an

injunction suit does not amount to collection of evidence in all

circumstances. In this regard, the learned counsel for the

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defendants relied upon a decision in M. Yadaiah and another v.

M. Chilkamma and others 1, wherein this Court observed that

appointment of Advocate Commissioner to note down the physical

features does not amount to facilitating the party to collect

evidence. In Shaik Zareena Kasam v. Patan Sadab Khan and

others 2, the High Court for the erstwhile State of Andhra Pradesh

observed that whenever there is a dispute regarding boundaries or

physical features of the property or any allegation of encroachment

as narrated by one party and disputed by another party, the facts

have to be physically verified, because, the recitals of the

documents may not reveal the true facts and measuring of land on

the spot by a surveyor may become necessary. In Singidi Ram

Reddy and another v. Kotra Sudhakar Gupta 3, this Court

observed that for deciding the lis in the suit, the appointment of an

Advocate-Commissioner would certainly be helpful as the dispute

regarding the boundaries of the suit schedule property will be

appreciated with the help of the report that may be filed by the

Advocate-Commissioner. In Adarsh Constructions, Hyderabad

and another v. Qamaarunnissa Begum and another 4, this Court

1 2022 (2) ALD 299 (TS) 2 2011 (4) ALD 231 3 2023 (4) ALD 346 (TS) 4 2022 (4) ALD 112 (TS)

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held that law is well settled that there is no absolute bar for

appointment of Advocate Commissioner in a suit for injunction

simpliciter either in the course of trial or during enquiry in a

temporary injunction petition.

8. Admittedly a survey was conducted and boundaries in

respect of suit schedule property were fixed in the month of

August, 2022, which is prior to the filing of the suit in O.S.No.394

of 2023. As can be seen from the cause of action shown in the

plaint, the disputes between the parties arose in the month of

October, 2022. As can be seen from the contentions of the

defendants, there is a dispute with regard to encroachment of land

by the plaintiff to an extent of Ac.0.20 guntas. In such

circumstances, in order to resolve the dispute between the parties,

there is a necessity to survey the land. In this regard, the learned

counsel for the defendants relied upon a decision in Smt. A.

Laxmamma and another v. Smt. A. Venkatamma and another 5,

wherein this Court observed as under:

"Reverting to the facts of the case, the plaintiffs are claiming that they are in possession of the suit plots whereas the defendants are claiming that the plaintiffs are not in possession and that they are in possession of the house property and the vacant court yard in front of the house and that after obtaining the gift deed the plaintiffs tried to occupy that open site and that a

5 2016 (6) ALT 795 (S.B.)

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criminal case is also registered and that the plaintiffs furnished wrong boundaries in the plaint and that in fact the defendants raised construction upto basement level in the open site. Be that as it may. The defendants are seeking appointment of a Commissioner specifically to make local inspection and note down the physical features viz., boundaries and also the existence of construction upto basement level in the property being claimed by them and to place before the Court an assured piece of evidence in the form of a Commissioner's report to show that the boundaries given by the plaintiffs are incorrect and that the plaintiffs are making incorrect claim by showing incorrect boundaries in respect of the plaint schedule plots. The plaintiffs are asserting that the plaint schedule plots are correctly described. As rightly contended if both the parties and their witnesses assert the pleaded boundaries of the properties in the respective depositions, such oral evidence may not be sufficient to conclusively determine the correctness or otherwise of the contentions of either of the parties. Orders in the nature of appointment of an advocate Commissioner to note down the physical features and boundaries of the disputed properties are incidental and complimentary in nature and assist the Court is arriving at a just decision in the lis unlike supplementary orders. The request for appointment of Commissioner for the purpose stated by the defendants, in the considered view of this Court, by no stretch of imagination, can be called an attempt to gather evidence. Further, the pleadings of the parties in the interlocutory application would also show that the plaintiffs also filed a sketch map in respect of the suit plots. If the Commissioner is appointed, he can also verify and submit to the Court about the correctness or otherwise of the sketch map said to have been filed by the plaintiffs. Therefore, the appointment of a Commissioner, in the facts and circumstances of the instant case, would be helpful to the Court below in conclusively and effectively adjudicating the lis."

9. The only ground on which the trial Court refused to grant

the relief of appointing Advocate Commissioner is that the

appointment of Advocate Commissioner amounts to collection of

evidence. It is to be seen that Section 75 of the Code of Civil

Procedure deals with appointment of Advocate-Commissioner and

envisages that a Commissioner can be appointed to aid the Court

and as such, a Commissioner may be appointed to examine any

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person, to make local investigation, to examine or adjust accounts,

to make a partition, to hold a scientific or technical or expert

investigation, to conduct sale of property, in the circumstances

mentioned therein or to perform a ministerial act. Along with the

said provision, the relevant provision is Order XXVI Rule 9 of the

Code of Civil Procedure. Having regard to the provision under

Order XXVI Rule 9 of the Code of Civil Procedure, this Court is of

the considered view that the learned Judge of the trial Court erred

in concluding that only for the purpose of collection of evidence,

the defendants have moved an application for appointment of an

Advocate-Commissioner. The trial Court ought to have observed

that noting down the physical features that exists at the disputed

property themselves does not change the circumstances present

therein and the Advocate-Commissioner's report would always aid

the Court in coming at a just conclusion with regard to the

presence of a situation that exists at the disputed suit property.

Admittedly, nothing present therein can be changed either through

physical verification of the Advocate-Commissioner or by his

report. The point that has to be observed here is that any

Advocate-Commissioner appointed by any Court of law would

execute warrant issued for noting down the physical features of the

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disputed property, only after issuance of notice to both the parties

fixing the date and time of inspection. The Advocate -

Commissioner would inspect the disputed property at all times in

the presence of the parties to the suit or their authorized

representatives including their counsel except in cases, where such

parties themselves restrain from making their presence in spite of

issuance of notice. Also, law provides and enables the parties to

the proceedings to file objections to the Commissioner's report

after it is presented to the Court of law on execution of warrant.

Further, the report that is going to be filed by the Advocate

Commissioner can be subjected to cross examination also during

the course of trial. Such being the case, it cannot be held that only

for the purpose of collection of evidence, the petitioner has moved

application for appointment of Advocate-Commissioner.

10. In M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit,

Pachama, District Sehore and Others v. M/s. Modi Transport

Service 6 the Honourable Apex Court observed as under:

"33. Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order XXVI Rule 11, the court

6 2022 Live Law (SC) 471

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has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary, to a person as it thinks fit directing him to make such examination or adjustment. When a court issues such a commission to such a person, it can direct the commissioner to make such an investigation, examination and adjustment and submit a report thereon to the court. The commissioner so appointed does not strictly perform a 'judicial act which is binding' but only a 'ministerial act'. Nothing is left to the commissioner's discretion, and there is no occasion to use his judgment or permitting the commissioner to adjudicate and decide the issue involved; the commissioner's report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the commissioner, the report forms part of the record and evidence. The parties can contest an expert opinion/commissioner's report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/commissioner's report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties"

11. Thus, it is clear that the report filed by an Advocate

Commissioner is non-adjudicatory in nature and the Courts are

not bound by such report and such report will only aid/assist the

Court in arriving at an appropriate conclusion. Hence, by

considering the principle laid down in the above said decision it is

clear that the exercise of appointment of an Advocate

Commissioner cannot be termed as collection/gathering of

evidence by any stretch of imagination.

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12. It is pertinent to refer the decision in Mohammed Jaffer

Abdul Qadeer Qureshi v. Aziz-Ur-Rehman Qureshi and Others7

wherein the High Court of Judicature for the State of Telangana

and the State of Andhra Pradesh held as under:

"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 being necessary complements in the main order without which the matter would be incomplete or ineffective. [vide M.A. Mohammed Ali v. R. Ramadoss, AIR -1966 1 Mad. 441]. Thus, incidental orders are complementary in nature and are intended to assist the Court in arriving at a just decision in the case and is 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."

7 2016 (3) ALD 38

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13. Further, in Jajula Koteshwar Rao v. Ravulapalli Masthan

Rao, 8 the erstwhile High Court of Judicature for the State of

Telangana and the State of Andhra Pradesh held as under:

"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."

14. Thus, considering the decisions that are referred supra and

having regard to the cause for which the appointment of Advocate-

Commissioner is sought for and as the law permits to do so, this

Court is of the view that the learned trial Court Judge ought to

have entertained the application as it was not filed to collect

evidence. In fact, since the nature of relief sought for appointment

of an Advocate Commissioner is to note down the physical features

of not only the suit schedule property but also the landed property

of the defendants, the report of the Advocate Commissioner will

assist the Court in deciding the lis between the parties. Hence, the

impugned order passed by the Trial Court is liable to be set aside.

8 2015 (6) ALD 483