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2007 DIGILAW 929 (AP)

Gangavarapu Hanumantha Rao @ Anjaneyulu v. Battagiri Ramulu

2007-09-24

L.NARASIMHA REDDY

body2007
ORDER 1. The petitioner filed O.S.No.413 of 2006 in the Court of Principal Junior Civil Judge, Sattenapalli, against the respondents, for the relief of perpetual injunction. He also filed I.A.No.1250 of 2006 under Order 39 Rules 1 and 2 C.P.C., and the trial Court granted an order of ex parte temporary injunction. The same is in force. 2. Respondents 1 to 4 herein (for short 'the respondents') filed I.A.No.1484 of 2006 under Order 26 Rule 9 C.P.C. for appointment of an Advocate- Commissioner, to identify the suit schedule property and to note its physical features, including taking of photographs etc. The petitioner opposed the application, on several grounds. Through its order, dated 17.11.2006, the trial Court allowed the I.A. Hence, this Civil Revision Petition. 3. The learned counsel for the petitioner submits that the respondents filed an identical application under the same provision, being I.A.No.1338 of 2006, and the trial Court dismissed the same on 01.11.2006. He contends that the present petition, which was filed on 17.11.2006, without there being any change in the legal and factual position, was absolutely without any basis and the order under revision cannot be sustained in law. 4. The learned counsel for the respondents, on the other hand, submits that the context, in which I.A.No.1484 of 2006 was filed, was totally different and in a way, the respondents wanted the trial Court to undertake an exercise under Rule 7 of Order 39 C.P.C. also and the same does not warrant interference. 5. Filing of applications for appointment of Commissioners under Order 26 Rule 9 C.P.C., in the suits for perpetual injunction, cannot be treated as a matter of routine. The contentions of the parties, as to the possession over the suit schedule property, need to be appreciated, with reference to the evidence, that may be adduced, be it at the interlocutory or the final stage. The appointment of Commissioners, at the initial stages, is prone to be treated as step to gather evidence. Therefore, the Courts discourage the filing of applications under Order 26 Rule 9 C.P.C. in the suits for injunction, at the initial stages. 6. The appointment of Commissioners, at the initial stages, is prone to be treated as step to gather evidence. Therefore, the Courts discourage the filing of applications under Order 26 Rule 9 C.P.C. in the suits for injunction, at the initial stages. 6. Soon after receiving notices in the suit as well as in I.A.1250 of 2006, in which an order of ad interim injunction was granted, the respondents filed I.A.No.1338 of 2006 with a prayer to appoint an Advocate-Commissioner, to visit the suit schedule property and submit a report as regards its location and physical features. That application was opposed by the petitioner, by filing the counter affidavit. The trial Court had undertaken extensive discussion; and placing reliance upon several decided cases, dismissed the I.A. on 01.11.2006. 7. The respondents filed another application, being I.A.No.1484 of 2006, under the same provision and for the same relief. The curious part of the matter is that in the affidavit filed in support of the I.A.No.1484 of 2006, there is not even a reference to the earlier application, much less its dismissal. Apart from opposing the application on merits, the petitioner raised the ground of resjudicata also. The trial Court, however, overruled the objections and allowed the I.A. on 17.11.2006. 8. This Court expresses its serious dissatisfaction about the approach of the trial Court, in entertaining and disposing of I.A.No.1484 of 2006. Hardly the ink on the order passed in I.A.No.1338 of 2006 dried, the petitioner filed the second application with the same prayer on 1711.2006 and it came to be allowed within four days thereafter. The trial Court made strenuous efforts, to cover up its otherwise untenable exercise, by making a reference to Order 39 Rule 7 C.P.C., and it cleared its way, by observing that the orders passed in interlocutory applications cannot operate as res judicata. Legality apart, the propriety ought to have prevailed upon the trial Court to be circumspect. 9. It is not as if the dismissal of I.A.No.1338 of 2006 had completely sealed the fate of that application. In case, the respondents were aggrieved by that order, they could have filed a revision before this Court. On the other hand, if they felt that the trial Court committed any apparent error, on the face of the record, they ought to have filed an application for review. In case, the respondents were aggrieved by that order, they could have filed a revision before this Court. On the other hand, if they felt that the trial Court committed any apparent error, on the face of the record, they ought to have filed an application for review. Entertaining another application with the same contentions and passing an order diametrically opposite to the views expressed, hardly within one week, would certainly give an impression that all was not well in the whole exercise. 10. Therefore, the Civil Revision Petition is allowed and the order under revision is set aside. There shall be no order as to costs.