Telangana High Court
Mende Shekar vs Manchikanti Balaji on 13 June, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No. 498 of 2025
ORDER:
1. The present Civil Revision Petition is preferred aggrieved by
the order dated 23.01.2025 in I.A. No.948 of 2024 in I.A. No.851
of 2024 in O.S. No.48 of 2024 passed by the Principal Senior
Civil Judge, Nalgonda.
2. The revision petitioners are the plaintiffs in the main suit
filed vide O.S. No. 48 of 2024 under Order VII rule 1 and 3 r/w
Section 26 of C.P.C.
3. The petitioners along with the suit filed interlocutory
application under order XXXIX Rule 1 and 2 r/w Section 151 of
C.P.C. vide I.A. No. 851 of 2024 for grant of injunction.
4. The respondents herein who are defendants in the main suit
and also respondents in the I.A. No. 851 of 2024 have filed the
underlying interlocutory application in the I.A. filed by the
petitioners herein for grant of injunction, under order XXVI rule
9 r/w Section 151 of C.P.C for appointment of an advocate
commissioner to note down the physical features of the Suit
schedule property and for recording the extent of suit schedule
property.
5. The court below considering the nature of relief sought for in
the suit had partly allowed the underlying Interlocutory
Application. Aggrieved by the same present revision is filed.
6. Heard Sri E. Srinivasa Rao, learned Counsel for the
petitioners, and learned Counsel for the respondents and perused
the record.
7. The Revision Petitioner's herein contend that they had filed
a suit vide O.S. No. 48 of 2014 on the file of Senior Civil Judge,
Nalgonda, against the respondents herein for Declaration of Title
and injunction in respect of Suit Schedule Property i.e. Open
House Plot No. 84 in Ward No. 6, Block No. 4 inside residential
Zone total admeasuring 4,44,44 Sq yds situated at Nagarjuna
Nagar Colony, Nalgonda Town & District and filed an
interlocutory application vide I.A. No. 851 of 2024in O.S.No. 48
of 2024 to issue ex parte temporary injunction order against the
respondents herein.
8. The Petitioners contend that the respondents herein had filed
the underlying Interlocutory application in the I.A. filed by the
petitioners seeking grant of exparte injunction, for appointment
of an Advocate Commissioner to note down the physical features
of the Suit Schedule Property and for the purpose of recording the
extent of Suit Schedule property namely existing constructions,
compound wall, to verify and record electricity connection details
and tap water connection details, bore well observation, to verify
and record the permission given by Nalgonda Municipality etc. in
connection with the Suit Property.
9. The Petitioners contend that they have filed their Counter in
I.A. No. 948 of 2024 opposing the prayer for the appointment of
an Advocate Commissioner. The Petitioner further contends that
the Court below erred in allowing the interlocutory application
filed by the respondents hereinunder Order XXVI Rule 9 of CPC
inasmuch as an Advocate Commissioner cannot be appointed for
gathering evidence in support of one of the parties.
10. The Petitioners also contend that the Court below ought to
have dismissed the Petition filed by Respondent No. 1 for
appointment of Advocate Commissioner by directing them to
adduce independent evidence in support of their case as the
petitioners being dominus litus are bound to prove their case and
it is not for the respondents herein to get a commissioner
appointed in an injunction suit.
11. The petitioners further contend that the question of whether
the plaintiffs are in possession of the suit schedule property as on
the date of the suit is a matter to be adjudicated upon based on the
oral and documentary evidence adduced by both parties, and
hence, the appointment of an Advocate Commissioner was neither
necessary nor warranted.
12. Per contra, Respondent No.1 contends that, upon a
comparison between the Suit Schedule Property and the Written
Statement filed by the Petitioners herein, several major
discrepancies have been identified, particularly with respect to the
extent of the property, boundaries, existence of a compound wall,
nature of construction, possession, and the requisite permissions
obtained from the Government, among other aspects.
13. The Respondent No.1 contends that the petitioners herein
have intentionally instituted the main Suit against Respondent
No.1/Defendant No.1 and other defendants with a mala fide
intention to grab the property belonging to Respondent No.1 and
to unlawfully dispossess him from its physical possession. In
view of the said circumstances, it is just and necessary to appoint
an Advocate Commissioner to inspect and record the physical
features of the suit schedule property, including the existing
constructions, compound wall, extent of the property, details of
electricity and water connections, borewell observations, and to
verify and record any permissions obtained from the Nalgonda
Municipality in relation to the said property.
14. The respondent No.1 also contends that an appointment of
Commissioner would assist the Court below in arriving at a just
and proper conclusion in the adjudication of I.A. No. 851 of 2024
as well as the main suit and no prejudice would be caused to the
petitioners herein by the appointment of an Advocate
Commissioner. The respondent No.1further contends that the trial
Court has rightly allowed the interlocutory application for
appointment of an advocate commissioner to note down the
physical features of the Suit schedule property.
15. The Trial Court upon hearing both sides and by perusing the
record, observed that the Advocate commissioner can be
appointed for the purpose of local investigation as no amount of
evidence adduced in the court will clear the ambiguity and
vagueness except evidence taken from its peculiar and unusual
nature on the spot in order to clarify a point which may leave
doubt orambiguity on record.
16. The Trial Court by observing above appointed Sri
Md.Raziuddin, Advocate As advocate commissioner and the
Advocate commissioner is directed to note down the physical
features of suit schedule property on the spot with the assistance
of Mandal Surveyor and to record the boundaries and existence
of any constrictions made viz, house, compound wall etc. The
Advocate commissioner fee is fixed at Rs.15,000/- payable by the
petitioners herein and further held that in so far as the relief
sought for verification of the record pertaining to electricity
connection details, water tap connection details, bore well
connection details and permission of the Nalgonda Municipality
for construction by the advocate commissioner is refused.
17. I have taken note of the contentions urged.
18. The sole issue falling for consideration before this Court, is
as to whether an Advocate commissioner can be appointed in a
suit for perpetual injunction even before framing of issues.
19. In order to examine the issue at hand, it is beneficial to
referto Order 26 Rule 9 of the Code, 1908 which reads as under:
Commissions for local investigations:
"In any suit in which the Court deems a local investigation to be
requisite or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market-value of any property, or
the amount of any mesne profits or damages or annual net
profits, the Court may issue a commission to such person as it
thinks fit directing him to make such investigation and to report
thereon to the Court:
Provided that, where the State Government has made rules as to
the persons to whom such commission shall be issued, the Court
shall be bound by such rules.
From a reading of the said rule, it is understood that it is the power
of the trial Court to appoint an advocate commissioner and is
discretionary in nature.
20. At the outset it is trite law that when the identity of the
property is disputed, it is appropriate for the Court to appoint an
Advocate commissioner for investigation and demarcation of the
suit scheduled property (See: Haryana Waqf Board Vs. Shanti
Sarup and Ors 1).
21. The erstwhile High court for the state of Andhra Pradesh in
Velaga Narayana and Ors. Vs. Bommakanti Srinivas and Ors 2,
observed that such discretionary powers vested in the court should
be exercised in a judicious manner while taking into consideration
the nature of the dispute. The relevant observations are as under:
"13. Under Rule of Order 26 in any suit in which the Court
deems a local investigation is necessary or proper for the
purpose of elucidating any matter in dispute, it can issue a
commission. Though issuing commission is discretionary, the
Court has to exercise discretion in an appropriate and judicious
manner. The purpose and object of local investigation under
Rule 9 is to have the evidence from the spot itself to have a
correct and proper understanding of the dispute between the
parties. The local investigation report submitted by the
commissioner enables the Court to make a correct assessment of
evidence on record. When the Court is of the opinion that the
2008 (8) SCC 671
2014 (3) ALD 605
material on record requires elucidation, it would be just and
reasonable to issue a commission for the said purpose. A
commission at the instance of one of the parties to find out as to
who is in possession of the property cannot be issued as it
enables the party seeking appointment of commissioner to
collect or gather evidence. But, where there exists a dispute
regarding suit property, the Court has to necessarily issue a
commission with the assistance of a surveyor, otherwise, it
would be highly difficult for the Court to completely and
effectively resolve the dispute and issuing such commission
would not amount to collection of evidence. Commission for the
said purpose can be issued prior to or after the parties let in
their evidence."
19. In the case of Arvind Kumar Agarwal Vs. Legend Estates(P)
Limited, 3 the erstwhile High Court of Andhra Pradesh had
observed that an Advocate commissioner can be appointed in a suit
for perpetual injunction only where there is a serious dispute
pertaining to the boundaries or identity of the property.
20. Further, the erstwhile High court for the State of Andhra
Pradesh in K. Dayanand Vs. P. Sampath Kumar4, held that the
Code does not absolutely bar the appointment of an advocate
commissioner to note down the physical features of a property in
MANU/AP/2250/2014
MANU/AP/2260/2014
suit for injunction. This Court further held that if such an exercise
was necessary to reach the correct conclusions it was just to
appoint an Advocate commissioner. The relevant observations are
as under:
"25. There is no absolute bar on appointment of Commissioner in a
suit for injunction also as per the law laid down in the above
referredjudgments nor the provisions of Section 75 and Order
XXVI Rule 9 do impose such a prohibition. The respondent-
plaintiff filed the present application for appointment of Advocate
Commissioner to note down the physical features of the schedule
property only and not for the purpose of finding out who is in
possession of the property. The Court below recorded valid reasons
for appointment of Commissioner. The Court below in the
considered opinion of this Court is perfectly justified in appointing
the Advocate Commissioner and that the said order is in
accordance with the principles laid down in the above referred
judgments. Therefore, the order under revision does neither suffer
from any fundamental infirmity nor any jurisdictional error, which
warrants interference of this Court under Article 227 of the
Constitution of India.Taking into consideration the totality of
circumstances, this Court is of the considered view that
appointment of Commissioner in this case would undoubtedly and
certainly assist the Court below to arrive at a just and correct
conclusion."
(emphasis supplied)
Further where the issue in a suit for perpetual injunction revolves
around location, identification, measurement of a property, local
investigation ought to be done at an earlier stage, so that parties can
go to trail prepared.
21. In the case of Donadulu Uma Devi v. Girika Katamaiah @
Basaiah and others 5, the erstwhile High court for the state of
Andhra Pradesh held that, there is no restriction with regard to the
appointment of a person to carry out such local investigation under
Order XXVI Rule 9 CPC and it includes impliedly the power of the
Court to appoint a Commissioner to visit such property and get it
surveyed and also note its physical features taking help from a
qualified Surveyor subject to necessary requirement.
22. Thus, from the aforesaid decisions, it is clear that even in a suit
for injunction simpliciter, the Court has discretion to order
localization of property, provided there is a serious dispute
between the parties with regard to the either boundaries or
identification. However, it is needless to reiterate that such report
2013 (1) ALT 548
cannot record any particulars pertaining to the person in possession
of the property.
23.Therefore, in the light of the settled position of law, this Court is
of the view that the impugned order dated. 23.01.2025 appointing
an Advocate Commissioner to localize the suit scheduled property
before the framing of issues does not suffer from any infirmity.
24. Resultantly, this Civil Revision Petition is devoid of merit and
is dismissed. The order dated 23.01.2025 in I.A. No.948 of 2024 in
I.A. No.851 of 2024 in O.S. No.48 of 2024 passed by the Principal
Senior Civil Judge, Nalgonda, is sustained. No order as to costs.
Consequently, miscellaneous petitions pending if any shall
stand closed.
___________________
T. VINOD KUMAR, J
Date: 13.06.2025
MRKR/VSV
