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2008 DIGILAW 672 (AP)

Yeera Ayyanna v. H. Marthamma

2008-08-22

P.S.NARAYANA

body2008
ORDER :-This Court ordered notice before admission on 31.7.2008 and granted interim stay for a limited period. Though the respondent had been served, none represents the respondent. 2. The revision petitioner is the appellant in AS No.153/2006 on the file of IV Additional District Judge, Kurnool. The petitioner, as plaintiff, instituted the suit O.S. No.1039/2004 for the relief of permanent injunction restraining the respondent/ defendant and her men from making any encroachment and making any constructions in the raastha shown as GG1 BB1 in the plaint plan. The specific stand taken by the revision petitioner/plaintiff is that the said raastha measures 12 links whereas the stand taken by the respondent/defendant is that the raastha is only 10 links. The respondent also had taken a stand that she was not at all constructing any compound wall in the disputed raastha and the construction of the compound wall by her in anyway would not obstruct the right of the petitioner to have ingress and egress. 3. It appears that the suit was dismissed and aggrieved by the same, the revision petitioner had carried the matter by way of Appeal A.S. No.153/2000 on the file of IV Additional District Judge, Kurnool. The revision petitioner/appellant also moved an application I.A. No.156/2007 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, hereinafter in short referred to as "Code" for the purpose of convenience, praying for appointment of an Advocate-Commissioner to inspect the suit locality as shown in the Schedule and to note down the location of the petitioner's house, respondent's house, the disputed raastha GG 1 BB 1 and to measure the above said raastha and file his report. In the light of the respective stands taken by the parties - the averments made in the affidavit filed in support of the application and also the averments made in the counter denying such allegations, the learned IV Additional District Judge, Kurnool, having formulated the Point for consideration at Para 4 recorded reasons at Paras 5, 6 and 7, referred to the decision in Bongu Ramulu v. Gudur Narender Reddy, 1998 (3) ALD 657 = 1998 (3) ALT 473 and Anthony Dass v. Sabasthayan, 1996 (1) CTC 472 and came to the conclusion that the relief cannot be granted and accordingly dismissed the application. Aggrieved by the same, the present civil revision petition had been preferred. 4. Aggrieved by the same, the present civil revision petition had been preferred. 4. Sri T. V. Ramana Rao, the learned Counsel representing the revision petitioner would maintain that in the light of the respective stands taken by the parties relating to the width of the raastha, this question can be effectively adjudicated and whether raastha is of a width of 12 links or 10 links as contended by the parties only on appointment of a Commissioner to locally inspect and note down the physical features and filing a report. The Counsel also would maintain that the Appeal is continuation of the suit and the appellate Court also may appoint a Commissioner for noting down the physical features, if otherwise the appellate Court is satisfied that such appointment of Commissioner is essential for proper and effective adjudication of the matters in controversy. The Counsel also would maintain that even otherwise no serious prejudice would be caused to the other side even if a Commissioner to be appointed for the purpose prayed for. 5. The revision petitioner is the plaintiff who filed the suit as. No.1039/2004 aforesaid praying for the relief of permanent injunction which was dismissed. The matter was carried by way of Appeal A.S. No.153/ 2006 and an application IA. No.156/2007 was filed praying for appointment of Commissioner to inspect the suit locality as shown in the Schedule and to note down the location of the petitioner's house, respondent's house, the disputed raastha GG 1 BB 1 and to measure the above said raastha and file the report. It is no doubt true that there is some lapse of time in filing this application praying for appointment of Commissioner to make local inspection and to note down the physical features. It is stated that the original Court made certain observations even in relation to the non taking of any steps relating to appointment of Commissioner. It is no doubt true that merely because certain observations were made by the original Court, that itself cannot be a ground to move an application for appointment of Commissioner at the appellate stage. When the party was not diligent to move such an application when the original suit was pending, normally Courts are expected to be slow in exercising the discretion of making such appointment of Commissioners at the appellate stage. When the party was not diligent to move such an application when the original suit was pending, normally Courts are expected to be slow in exercising the discretion of making such appointment of Commissioners at the appellate stage. It is no doubt true that by virtue of Section 102 of the Civil Code of Procedure, such power as well can be exercised even by the appellate Court, but the same to be exercised only when the appellate Court is satisfied that there are certain justifiable reasons. However, it is stated that though there is some lapse of time after the institution of the suit in moving this application for appointment of Commissioner at the appellate stage, the topography or the physical features had not been substantially changed and hence the said measurements relating to the width of the raastha can be as well obtained clearly by appointment of Commissioner and since this being the only crucial question in controversy between the parties, it may be just and proper to appoint an Advocate Commissioner. In the affidavit filed in support of the application, certain averments were made and specific stand had been taken that the petitioner could not take steps to get an Advocate-Commissioner appointed before the trial Court due to ignorance of facts and for the reason that he was not advised properly. However, the specific stand taken by the respondent is that since the petitioner is claiming a legal right the same to be established only by documentary evidence and no purpose would be served by appointment of a Commissioner. It is needless to say that the appointment of a Commissioner normally would be made under Order XXVI Rule 9 of the Code for the purpose of noting such physical features and such facts which may be peculiar in the nature which may not be able to be established by the parties by letting in oral and documentary evidence to prove a particular fact and because of the peculiarity, the report of the Advocate-Commissioner in relation thereto may be essential for the purpose of adjudicating the questions in controversy. The oral and documentary evidence had been appreciated and findings had been recorded by the original Court and ultimately the petitioner/appellant/plaintiff was unsuccessful before the original Court. 6. The oral and documentary evidence had been appreciated and findings had been recorded by the original Court and ultimately the petitioner/appellant/plaintiff was unsuccessful before the original Court. 6. The dispute is in relation to the ingress and egress through a raastha and further question in controversy between the parties is in relation to the width of the raastha - 12 links or 10 links. This aspect may well be better adjudicated by the Court in the event of the Advocate-Commissioner visiting the spot taking the exact measurements of the width of the raastha. It is needless to say that these features relating to the width and the topography cannot be established by other mode of evidence and the better mode would be to have a Commissioner appointed. When that being so, the learned Judge instead of exercising the discretion of appointing an Advocate Commissioner dismissing the application on the ground that the same was moved at the appellate stage, in the considered opinion of this Court, cannot be sustained. Accordingly, the impugned Order is set aside and the civil revision petition is hereby allowed. Let the learned Judge appoint an Advocate Commissioner for the purpose prayed for in the application in accordance with law at an early date. No costs.