CRP/5105/2015 of P. Kailash Nath Vs Sri. P.Balakrishna on 31 December 2015

ORDER:

The petitioner is the defendant in O.S.No.1638 of 2015 on thefile of VII Junior Civil Judge, City Civil Court, Hyderabad. The saidsuit was filed for declaration that the iron gate erected by thedefendant at North-West corner of the schedule property as shownin rough sketch and marked with Red colour as illegal andunauthorised. In the said suit, the petitioner herein filed I.A.No.243of 2015 for appointment of an Advocate Commissioner to note downthe physical features of the schedule property pending disposal ofthe main suit. But the said application was dismissed holding asfollows:

“……The Supreme Court as well as Appellate Courts time andagain cautioning the Courts, in the injunction suits the Courtcannot delegate the power to the Commissioner to see who isin possession of the property and also Commissioner cannotinvestigate into the disputed question of fact of possession.

This Court is not inclined to appoint Commissionereither for the purpose sought by the petitioner/defendant.

Since there is no dispute about the existence of Will deed andalso common passage of the parties, it is for the parties toprove their respective cases by adducing evidence forthemselves. It is not possible for the Court to collect theevidence for the purpose. Further the appointment ofAdvocate Commissioner would no way serve the purpose andit would not be helpful to the Court to decide the dispute. In thefacts and circumstances noticed above, I am not inclined toappoint the Advocate Commissioner for the purpose sought bythe petitioner/ defendant. Hence, the petition is liable to bedismissed.

In the result, the petition is dismissed but without costs.”

I have gone through the sketch filed along with the plaint andthe averments made in the affidavit filed in support of theapplication for appointment of an Advocate Commissioner. TheAdvocate Commissioner is sought to be appointed only to notedown the physical features of the property existing as on today. The report of the Advocate Commissioner would help the Court tocome to a conclusion in a suit of this nature. The report of theAdvocate Commissioner cannot be construed as a finding of factsor collection of evidence. The parties are entitled to lead theirevidence independently of the report of the AdvocateCommissioner.

In the circumstances, the order dated 30-10-2015 inI.A.No.243 of 2015 in O.S.No.1638 of 2015 is set aside andI.A.No.243 of 2015 is allowed and the matter is remanded to thelearned VII Junior Civil Judge, City Civil Court, Hyderabad forappointing an Advocate Commissioner for noting down the physicalfeatures of the property existing as on today. The plaintiff and thedefendants are entitled to file their work memos with the AdvocateCommissioner and if they are aggrieved, they can file theirobjections also after submission of the report by the AdvocateCommissioner.

The Civil Revision Petition is accordingly allowed. No costs.As a sequel thereto, miscellaneous petitions, if any, pending shallstand closed.

Date: 31-12-2015Ksn

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A.RAMALINGESWARA RAO, J