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2005 DIGILAW 1101 (AP)

Mukund Lal v. Sharada Bai

2005-11-22

N.V.RAMANA

body2005
( 1 ) THIS C. R. P. is directed against the order dated 20. 9. 2005, passed by the II Junior civil Judge, City Civil Court, Hyderabad, allowing the application in I. A. No. 1530 of 2005 is O. S. No. 7739 of 2004, filed under order XXVI Rule 9 of the Code of Civil procedure, 1980 by respondent Nos. 1 to 3, praying to appoint an Advocate commissioner, to note down the physical features of the construction of the plaint schedule property. ( 2 ) THE petitioner is defendant No. 1, respondent No. 4 is defendant No. 4, and while respondent Nos. 1 to 3 are the plaintiffs. The plaintiffs filed suit in O. S. No. 7739 of 2004 seeking declaration and mandatory injunction against defendant No. 1 inter alia contending that defendant No. 1 is making illegal construction and that defendant No. 2 is riot taking any action. Defendant No. 1 contested the suit inter alia contending that he did not make any illegal construction, and that the suit itself is not maintainable against him. As defendant No. 1 is making illegal constructions in violation of the sanctioned plan, the plaintiffs filed the present application praying to appoint an Advocate Commissioner to note down the physical features of the plaint schedule property, which by reason of the order impugned in this C. R. P. was allowed. ( 3 ) HEARD the learned counsel for the petitioner and the learned counsel for the respondent Nos. 1 to 3. ( 4 ) THE learned counsel for the petitioner submitted that respondent Nos. 1 to 3 are not neighbours of the petitioner. Making false allegations that the petitioner, is making illegal construction in violation of the sanctioned plan by encroaching the road, they filed the present suit. He submitted that if petitioner is making illegal constructions, respondent No. 4 who sanctioned the plan, is at liberty to inspect the construction and take necessary action. As such, the Court below committed a grave error in appointing the Advocate commissioner, to note down the physical features of the construction, and if allowed to sustain, it would amount to permitting respondent Nos. 1 to 3 to gather the evidence. He thus prayed that the impugned order be set aside and the C. R. P. allowed. ( 5 ) ON the other hand, the learned counsel for respondent Nos. 1 to 3 to gather the evidence. He thus prayed that the impugned order be set aside and the C. R. P. allowed. ( 5 ) ON the other hand, the learned counsel for respondent Nos. 1 to 3 supported the impugned order. He submitted that as the petitioner is making illegal construction, and as respondent No. 4 is not taking any action, respondent Nos. 1 to 3 filed the suit and the present application, for appointment of advocate Commissioner, to note down the physical features of the building, which was allowed, and by appointing Advocate commissioner, it cannot be said that the court below has permitted him to collect evidence for respondent Nos. 1 to 3. In support of his arguments, he placed reliance on the judgment of the apex Court in Rajinder and Co. v. Union of India and others, and of this Court in Vishnudas Manga Bhavani v. V. Bhaskar. He thus prayed that the C. R. P. be dismissed. ( 6 ) HAVING heard the respective parties, and having perused the order under revision, i find no reason whatsoever to interfere therewith. ( 7 ) IT is the case of respondent Nos. 1 to 3 that the petitioner is making construction in violation of the sanctioned plan, and that respondent No. 2, which is duty bound to check the illegal construction, is not taking action. The petitioner denied that she is making any illegal construction. Whetherthe petitioner is making illegal construction or not, the fact remains, the Court below has allowed the application filed by respondent nos. 1 to 3 praying to appoint an Advocate commissioner to note down the physical features of the suit schedule property. By allowing the application filed by respondent nos. 1 to 3 to appoint an Advocate commissioner, to note down the physical features of the suit schedule property, it cannot be said that the Advocate commissioner has been appointed to collect evidence for the plaintiff. It is not as if the advocate Commissioner would be noting down the physical features behind the back of the petitioner. He would execute the warrant in the presence of both the parties and submit his report reflecting the fact realities. It is not as if the advocate Commissioner would be noting down the physical features behind the back of the petitioner. He would execute the warrant in the presence of both the parties and submit his report reflecting the fact realities. This apart, it is not as if the report to be submitted by the Advocate Commissioner would be final, for it is always open for the parties to object the same by filing their objections, if any, thereto. There is no merit in the C. R. P. , and the same is accordingly dismissed. No costs.