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Telangana High Court · body

2021 DIGILAW 383 (TS)

M. Yadaiah v. M. Chilkamma

2021-12-02

CHILLAKUR SUMALATHA

body2021
ORDER : Challenge in this Civil Revision Petition is the order of the Court of Principal Junior Civil Judge, Sangareddy, dated 14/12/2017 in I.A.No.482 of 2017 in O.S.No.322 of 2012 pending on the file of the said court. 2. Heard the submission of the learned counsel appearing for the revision petitioners as well as the learned counsel appearing for the respondents. 3. By the material available on record, it is clear that the Revision Petitioners are defendants 1 and 2, respondents 1 and 2 herein are the plaintiffs and the third respondent is defendant No.3 to the suit. 4. The Revision Petitioners herein moved an application vide I.A.No.482 of 2017 before the trial court with a prayer to appoint an Advocate-Commissioner for noting down the physical features of the suit schedule property, more particularly to observe the road that leads from the main road to the land of the petitioners, invoking Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure. 5. The respondents 1 and 2 herein resisted the said application by filing a counter. 6. Considering the contentions and the rival contentions of both parties, the trial court came to a conclusion that there exists no need or necessity for appointment of an Advocate-Commissioner and therefore, the petition is not maintainable. The observations made by the trial court and the consequent dismissal of the Interlocutory application are under challenge in this Civil Revision Petition. 7. In the grounds of Revision, it is contended that the trial court failed to appreciate the fact that noting down the existence of 18 feet road from the main road to the site of the petitioners would not amount to collection of evidence and the trial court illegally and contrary to the settled principles of law, dismissed the application and the finding of the trial court that the application is moved to identify the suit schedule property is perverse and the order of the trial Court is opposed to the very spirit and object contemplated under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure and therefore, the said order has to be set aside. 8. Having given anxious consideration to the submission of both counsel, the points that emerge for consideration are: 1. 8. Having given anxious consideration to the submission of both counsel, the points that emerge for consideration are: 1. Whether there exists any justifiable ground for appointment of Advocate-Commissioner to note down the physical features of the suit schedule property along with the existence of road/path-way therein. 2. Whether there exists any infirmity in the order of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the revision petitioners, which in turn requires the interference of this Court exercising revisional jurisdiction. 9. Point No.1: Stating about the merits in the relief sought for, the learned counsel for the petitioners contended that the petitioners never claimed any right or title over the property of respondents 1 and 2 and their only contention is that there exists a passage of 18 feet and for bringing the same to the notice of court, there is no other option except to seek appointment of an Advocate-Commissioner for noting down the said aspect and therefore, the petitioners rightly moved an application for appointment of Advocate-Commissioner to note down the same, but the trial court, misguided with the submission of respondents 1 and 2, dismissed the said application and the petitioners never intended to collect any kind of evidence through the report of Advocate-Commissioner and thus, aggrieved by the order of the trial court, the petitioners are before this court for justice. 10. Per contra, learned counsel for the respondents 1 and 2 stated that the entire evidence on both sides is completed and sufficient material is brought on record for just disposal of the case and that, observing the same and further observing the fact that there exists no necessity for appointment of Advocate Commissioner, the trial court rightly dismissed the application and hence, the order of the trial court holds good in all aspects. 11. In the light of the above said submission, it has to be seen whether the learned Judge of the trial court has arrived to a just conclusion basing on the merits of the case. The specific plea of the petitioners is that it is not possible for them to show the existence of the road by leading any evidence except by physical verification which is possible only through appointment of an Advocate-Commissioner and therefore, the petition has to be allowed. The specific plea of the petitioners is that it is not possible for them to show the existence of the road by leading any evidence except by physical verification which is possible only through appointment of an Advocate-Commissioner and therefore, the petition has to be allowed. Respondents 1 and 2 resisted the prayer taking the aid of the points elicited during the cross-examination of DW-1 and further, basing on the contents of Ex.A-7 and Ex.B-7. 12. The trial court taking aid of the averments made in the affidavit filed in support of the petition, revealed its mind that the pleadings in the petition themselves show that the purpose of appointment of Advocate-Commissioner is to gather evidence. The learned Judge by stating so also held that the law is settled that an Advocate-Commissioner cannot be appointed for collection of evidence. The observations of the trial Judge at para No.13 of the order, are as hereunder : 13. “As seen from the pleadings in the present petition, it is categoric admission of petitioners/defendants that except appointment of Advocate-Commissioner there is no other available evidence for petitioners/defendants to prove the existence of passage of 18 feet road running through the land of plaintiffs in suit property. This pleading in the petition itself show that the purpose to appoint an Advocate-Commissioner is to gather evidence on behalf of petitioners/defendants for the plea taken by them in the written statement. The law is settled that Advocate Commissioner cannot be appointed for collection of evidence. The present petition averments as pleaded by petitioners/defendants show that the purpose for appointment of Advocate-Commissioner is to gather evidence for supporting the pleadings of defendants in their written statements therefore on this solitary ground the present petition is liable for dismissal". 13. Thus, narrating the order in the lines of non-maintainability of an application to appoint an Advocate-Commissioner to gather evidence, the learned Judge of the trial Court dismissed the application. Thus, now it has to be seen whether appointment of an Advocate-Commissioner to note down the physical features of the disputed property amounts to collection of evidence or not. 14. 13. Thus, narrating the order in the lines of non-maintainability of an application to appoint an Advocate-Commissioner to gather evidence, the learned Judge of the trial Court dismissed the application. Thus, now it has to be seen whether appointment of an Advocate-Commissioner to note down the physical features of the disputed property amounts to collection of evidence or not. 14. Section 75 of C.P.C. deals with appointment of Advocate-Commissioners and envisages that a Commissioner can be appointed to aid the Court and as such, a Commissioner may be appointed to examine any person, to make local investigation, to examine or adjust accounts, to make a partition, to hold a scientific or technical or expert investigation, to conduct sale of property, in the circumstances mentioned therein or to perform a ministerial act. Along with the said provision, the relevant provision is Order XXVI Rule 9 of C.P.C. 15. Order XXVI Rule 9 of C.P.C., deals with the appointment of Commissioner to make local investigation. The said provision, reads as follows: Order XXVI Rule 9: Commissions to make local investigations :- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court : Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 16. Thus, the said provision grants power to the Civil Court in any suit to appoint a Commissioner for local investigation, where it is felt necessary for the purpose of elucidating any matter in dispute or for other purposes mentioned therein. 17. Having regard to the said provision, this Court is not inclined to appreciate the observations of the learned Judge of the trial court that only for the purpose of collection of evidence, the petitioners have moved application for appointment of an Advocate-Commissioner. 17. Having regard to the said provision, this Court is not inclined to appreciate the observations of the learned Judge of the trial court that only for the purpose of collection of evidence, the petitioners have moved application for appointment of an Advocate-Commissioner. The trial court ought to have observed that noting down the physical features that exists at the disputed property themselves does not change the circumstances present therein and the Advocate Commissioner’s report would always aid the Court in coming at a just conclusion with regard to the presence of a situation that exists at the disputed property. Admittedly, nothing present therein can be changed either through physical verification of the Advocate-Commissioner or by his report. The point that has to be observed here is that any Advocate Commissioner appointed by any Court of law would execute warrant issued for noting down the physical features of the disputed property, only after issuance of notice to both the parties fixing the date and time of inspection. The Advocate Commissioner would inspect the disputed property at all times in the presence of the parties to the suit or their authorized representatives including their counsel except in cases, where such parties themselves restrain from making their presence in spite of issuance of notice. Also, law provides and enables the parties to the proceedings to file objections to the Commissioner’s report after it is presented to the Court of law on execution of warrant. Such being the case, it cannot be held that only for the purpose of collection of evidence, the petitioners have moved application for appointment of Advocate-Commissioner. 18. Contending that in the factual situation of the case, appointment of Advocate-Commissioner is justifiable, the learned counsel for the petitioners relied upon the decision that is rendered by this court in MOHAMMED JAFFER ABDUL QADEER QURESHI Vs. AZIZ-UR-REHMAN QURESHI AND ORS, 2016 (3) ALD 38 wherein this Court at para No.16 observed as under: 16. Dealing lastly with the contention that the report of the Commissioner is not going to serve any purpose, be it noted that issuance of Commissions is dealt with in Section 75 of the Code, which deals with ‘Incidental Proceedings’; whereas the other interlocutory proceedings like grant of temporary injunctions and appointment of Receivers etcetera are dealt with in Section 94 of the Code which deals with ’Supplemental Proceedings’. Supplemental proceedings are separate proceedings in a Original action, in which the Court is called upon to exercise jurisdiction in aid of the judgment in action. Incidental Orders are being necessary complements in the main order without which the matter would be incomplete or ineffective. [vide M.A. Mohammed Ali v. R. Ramadoss, AIR -1966 Mad. 441]. Thus, incidental orders are complementary in nature and are intended to assist the Court in arriving at a just decision in the lis unlike supplemental orders. The request for appointment of a Commissioner for noting down the physical features of a property, in the well considered view of this Court, by no stretch of imagination can be called as an attempt to gather evidence. The Court below having noted that the claim of the plaintiff is that the entire property is divided as ‘A’ to ‘G’ parts and that out of that ‘A’ to ‘G’ parts and that out of that ‘A’ to “G’, “C’ schedule property is a road carved out and that the plaintiff also relies upon a plan to that effect and that in turn the defendants are contending that there is no road in existence as claimed by the plaintiff, had eventually appointed a Commissioner while observing that there are no tenable objections in the counter and that no prejudice would be caused if a Commissioner is appointed.” 19. On the same aspect, the learned counsel also relied upon the decision of this Court in VARALA RAMACHANDRA REDDY Vs. MEKALA YADI REDDY AND ORS, 2010 (4) ALD 198 wherein this Court dealing with the same aspect at para No.12, observed as follows: 12. “In M.L. Srinivas Rao’s case (supra), it has been held by a learned Single Judge of this Court that Commissioner can be appointed in a suit for permanent injunction to survey and for demarcating the lands and to give his report about the boundaries. The same proposition has been laid down by another learned Single Judge of this Court in Pandiri Pedda Saidaiah’s case (supra). The Supreme Court also held in Haryana Waqf Board’s case (supra), that a Commissioner can be appointed for the purpose of demarcating in respect of the suit land. The above referred three decisions squarely apply to the facts of the case on hand. The above referred three decisions squarely apply to the facts of the case on hand. The Supreme Court also held in Haryana Waqf Board’s case (supra), that a Commissioner can be appointed for the purpose of demarcating in respect of the suit land. The above referred three decisions squarely apply to the facts of the case on hand. The above referred three decisions squarely apply to the facts of the case on hand. The trial Court committed a serious error in dismissing the application field by the petitioner-plaintiff for appointment of Advocate-Commissioner for local inspection of the suit and to demarcate the suit schedule property with the help of a Surveyor.” 20. Thus, considering the decisions that are referred supra and having regard to the cause for which the appointment of Advocate-Commissioner is sought for and as the law permits to do so, this Court is of the view that the learned Judge of the trial Court ought to have entertained the application and ought to have appointed Advocate-Commissioner. Therefore, the point taken-up for discussion is answered holding that the petitioners are justified in seeking the relief of appointment of an Advocate-Commissioner before the trial court. 21. Point No.2:- The learned Judge of the trial court came to a conclusion that the petition is not maintainable on the sole apprehension that the application is moved by the petitioners only for the purpose of collection of evidence. As discussed in point No.1, appointment of Advocate-Commissioner to note down the physical features does not amount to facilitating the party to collect evidence. The Court has got ample power to discuss and determine the extent to which the Commissioner’s report can be taken-up into consideration for coming to a just conclusion with regard to the merits of the case. Such being the position as established by law, this Court is of the view that the learned Judge of the trial Court erred in dismissing the application. Therefore, this Court considers it desirable to set aside the said order by allowing this Revision Petition. 22. In the result, the Revision Petition is allowed. The order rendered by the Principal Junior Civil Judge, Sangareddy in I.A.No.482 of 2017 in O.S.No.322 of 2012, dated 14-12-2017 is set aside. Consequently, the application moved by the Revision Petitioners for appointment of Advocate-Commissioner is allowed. No costs. 23. As a sequel, pending miscellaneous applications, if any, shall stand disposed of.