CRP/3053/2022 of Nalla Wilson and another Vs Beldi Rani and another on 30 December 2022

ORDER

This Revision Petition is frted by the petitioners who are theplaintiffs in O.S.No.l033 ol 20)2 challenging the order of the PrincipalJunior Civil Judge-cum-Judic ia I Magistrate of First Class at Jangaondt.12.12.2022 in t.A.No.t07u of 2022 in I.A.No.866 0f 2022lnI.A.No.616 of 2022 in O.S.No. t033 of 2022.

2. The learned counsel lor the petitioners, Sri B. Shanker, submittedthat the suit has been filed tbr permanent injunction against therespondents/detbndants and ad interim injunction was granted in favourof the petitioners, vide orders in I.A.No.616 of 2022. Therespondents/deflendants have fllcd a stay vacate petition in LA.No.866 of2022. The petitioners fited I.A.No.l078 of 2022 in I.A.No.866 of 2022for appointment ot'an Advocatc Commissioner to veriS the existence ofa 'Four Wheel Garage shed' in the suit 'A' schedule property anCsubmit a repofi thereon. The plaintiffs were claiming that since thepurchase of the propeny, their l'arher had established the Garage byname'Four Wheel [(Jarage' ]antl u'as in possession of the same. The said Application has been opposed by the respondents and after consideringthe arguments olboth the parties, the Civil Court has dismissed the saidApplication. Against the said order, the present CRP is filed.

3. The respondents have filed a caveat petition and therefore, theleamed counsel representing the respondents has also been heard at theadmission stage itself.

4. While the learned counsel for the petitioners relied upon theaverments made in the afTidavit filed in support of the petition, he alsoplaced reliance upon the following two decisions:

(l) Phoolchand Asra Vs. Nagar Palika Nigam Raipur and othersl.

(2) Bommireddy Tirupathi Reddy Vs. Dokka Kondamma a nd others2.

He submitted that where there is a dispute of fact and the same can beelucidated by examination by a Commission, then appointment ol anAdvocate Commissioner [is ][j ][ustifi ][ed.]

I yy1;1 psrition (227) No.82l of20l9 of(he High Court ofChhattisgarh, Bilaspur dt.09.09.2022.

2 Civil Revisioa Petition No.9'14 of20l8 ofthe High Court ofJudicatue at Hyderabad for the Stateof Telangana and the [State ][of ][Andhra ][Pradesh dt ][06 ][07'20 ][18-]of Telangana and the [State ][of ][Andhra ][Pradesh dt ][06 ][07'20 ][18-]

5. Leamed counsel for the respondents, Sri G. Anandam, on theother hand submitted that the suit is still at trial stage and the suit is forinjunction and therefore appointment of an Advocate Commissioner atthis stage is not warranted and that it is filed only to protract the stayvacate petition filed by the respondents. In support of his abovecontention, he placed reliance upon the [judgment ]of this Court in thecase of Koduru Sesha Reddy Vs. Gottigundala Venkata RamiReddv and others .

6. Having regard to the rival contentions and the material on record,this Court frnds that the issue in this CRP is only with regard tonecessity of appointing an Advocate Commissioner at the stage ofconsidering the stay vacate petition filed by the respondents. ThepetitionerVplaintiffs have already been granted ad interim injunction.The petitioners are claiming possession over the property and in proofofthe same, it is subrnitted that thcir father had purchased the property andconstructed a shcd by name ['Four ]Wheel Garage' and he was inpossession of the same till his dcath and thereafter, the plaintiffs are inpossession of the same. Ther hare requested lor appointment of anAdvocate Commissioner onlv ro vcrily whether there is a Four Wheel ' [zooo ]1r; aLo [:zz]

Garage in the suit schedule property. This camot be said to be dilatorytactics. If there is a need for a factual verification, this Court is of theopinion that there cannot be any reason for not appointing an AdvocateCommissioner to veri$ the same. The [judgments ]relied upon by thelearned counsel for the petitioners support this stance of this Court. Forthe purpose of ready reference, the relevant paragraphs of the saidjudgments relied upon by the petitioners are extracted hereunder:

In the case of Phoolchand Asra Vs. Nagar Palika NigamRaipur and others (l supra), the Hon'ble High Court of Chhasttisgarh,Bilaspur has held as follows:

I0. Under Order 26 Rule 9 of C.P.C., the court itself canexercise the power or in order to elucidate the dispuled facl, and onthe Ercstion o.f encroachmcnt und location/identfication of land on anapplication filed by the parties. More so u,hen there is no agreed napbetween the partics, the 1tlunicipal Corporation or Municipal Councilor Pancha)'al con enler into dispute and decide the same by placingcorrect position of the partics. A plain reading of the provision saysthot the power can be exercised at any stage. Basic purpose toexercise pover under Order 26 Rule 9 of C.P.C. is to separate thewheal from chalf and in cases u,here it is necesiary to elucidate therelevant -facts. the Court can exercise its poy)ers. It must berentembered tfu [the ][proccdural ]law is made to advance the cause ofjttstice antl nol lo slranqulate thc litigant on hyper technical grounds.ln Order [26 ][Rule ][9 ][oI ][C.P.C. the ][word ]used is - ["elucidate" ]and itsmeaning as [per ][l4/ebslers ][Dictionary ]is ["to ]make light or clear, to explaiq to remove obscurity .from and render intelligible, toillustrate." According to Chambars Dictionary, "elucidate" means tomake lucid or clear or to throtr light upon, lo illuslrale, making clear,explanatory. ["]

14. Nou'coming to the.focts of the present case, there is disputeregardingflow of drainage woter. According to lhe petitioner/pldintiff,there is an encroachmenl over the drainage and which causesobstruction in the smooth /lowing of drainage water, whereasrespondent No.3 has stated thal lhere is no encroachmenl and due togarbage/polythene, papers, vaste materials, drainage is blocked. Inview of the disputed facts which in my opinion cannol be ascerlainedwithout local inspection or \lithout making local investigation andfurther [considering ][the ][judgmenrs ][passed ][by ][the vorious ][High ][Courts]and the Hon'ble Supreme Court. lhe learned trial Court ought to haveallowed lhe application moved hy rhe plaintiff/petitioner under Order26 Rule 9 of C P.C."

In the casc of Bommircddy Tirupathi Reddy Vs. DokkaKondamma and others (2 supra), the Hon'ble High Court of Judicatureat Hyderabad for the State ofTelangana and the State olAndhra Pradeshhas held as under:

"6. In lhe considered [,''iev ]of this Courl, in the circumsluncesstated by the defendanl, the oppt)intment of a Commissioner wouldsubserye the ends of.iustict. us. according to the de.lbndant, theentire exlenl of A.3.00 cents ol lund o/ the deJendant, out of whichAc.0.50 cents, which is incluleLl in rhe plaint schedule, is fenced withclosed planted teakwood plantution as a hedge and tirut it is forminga boundary or fence and thut tha lemon trees in the enlire garden,

which are in the entire Ac.3.00 cents of land, including the Ac.0.50cents, which the defendant is claiming as his, are of the satne ageand that the physical features would establish the pleaded defence,which the defendant intends to establish to succeed in the suit. Be itnoted that there is no hord and fast rule that in no suit for perpetualinjunction, a commission shall be issued though it is true that acommission cannol be issued for ascertaining as to who among theparties is in possession, as such a function being a judicial functioncannol be delegated. lt is now well settled that appointment of acommissioner lor noting down the physical features cannot betermed as collection of evidence. Further, the evidence, which thecommksioner galhers by noting down the physical features of theproperties, cannol olhen|ise be procured. If lhe Commissionerappointed makes a local inspeclion ond notes down the physicalfeatures [of ][the ][properties ][and ]files [a ][report, ][the ][said ][report ][ard ][the]eyidence he may give, based on his reporl, if he is examined beforelhe trial Court, would perhaps enable lhe trial Court to betterapprecidte the other evidence that mq,hc let in by the parties duringthe course of triol. In lhat viev'ofthe nolter andfor the above statedreasons, this Court finds that the defenclant made out valid andsfficient grounds for issuance of a commission and that, therefore,the order impugned is liable to be sel uside being unsustainable. "

7. In the decision relied upon by the leamed counsel for therespondents in the case of Koduru Sesha Reddy Vs. GottigundalaVenkata Rami Reddy [and ]others [(3 ]supra), it was held that in suits forperpetual injunction, appointment of a Cornmissioner to note down thephysical features cannot precede the recording of evidence and the parties have to adduce their evidence in support of their respectivecontentions as to possession and thereafter, the Court would be [justified]to appoint Commissioner, only if it feels that the evidence on record isnot sufficient for recording a finding, for the purpose of granting orrefusing the relief of injunction. In the said ci$e, the trial is yet tocommence and the Court has held that appointment of AdvocateCommissioner at that stage was not [justified. ]In the case before thisCourt also, the trial is yet to commence though the respondents havefited their written statement denying the existence of the Four WheelGarage.

8. The [judgment ]relied upon by the leamed counsel lor thepetitioners in the case of Bommireddy Tirupathi Reddy Vs. DokkaKondamma and others (2 supra) and also the decision relied upon bythe learned counsel for the respondents in the case ol Koduru SeshaReddy Vs. Gottigundala Venkata Rami Reddy and others (3 supra)are both relating to the Hon'ble High Court of Andhra Pradesh and thedecision in the case of Bommircddy Tirupathi Reddy Vs. DokkaKondamma and others (2 supra) being the latest judgment and beingdecided in similar circumstances has to be followed.

II

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9. In view of the same, the order dr.12.12.2022 in I.A.No.l078 of2022in I.A.No.866 of 2022 in I.A.No.6l6 of 2022 in O.S. No.l033 of2022 on the file of the Principal Junior Civil Judge-cum-JudicialMagistrate of First Class at Jangaon is set aside and the Civil Court isdirected to appoint an Advocate Commissioner from amongst theAdvocates available and issue a warrant to the Commissioner withnecessary directions and by fixing a date for submission ofthe report.

10. The Civil Revision Petition is accordingly allowed. No order [as ]tocosts.

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

SD/.NAYANI CHANDRA SEKHAR RAOASSISTANT REGISTRAR//TRUE COPY/I \-..!... ['\"',']SECTION OFFICER

To,

1. The Principal Junior Civil Judge - cum - Judicial Magistrate of First Classat JANGAON.at JANGAON.

2. One CC to SRI B. SHANKER, Advocate [OPUC]

3. One CC to SRI G. ANANDAM, Advocate IOPUC]

4. Two CD Copies

BB6s(

HIGH COURT

DATED: 3011212022

ORDER

CRP.No.3053 of 2022

t.e-Y\t:4.,t,,jt-ac'os'*t.lr.)

ALLOWING THE CIVIL REVISION PETITIONWITHOUT COSTS

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