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2022 DIGILAW 1519 (AP)

J. Radha Krishna Murthy v. Janapati Parthasarathy

2022-12-28

B.S.BHANUMATHI

body2022
JUDGMENT B.S. Bhanumathi, J. - This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 23.12.2022 ordering issue of notices to the respondents and adjourning the matter to 25.01.2023 in a petition in I.A.No.710 of 2022 in O.S.257 of 2022 on the file of the Court of Junior Civil Judge, Piduguralla filed under Order XXVI Rule 9 CPC to inspect the suit schedule property and note the existing physical features of the same, including measuring the suit schedule property with the assistance of Piduguralla Mandal surveyor and also answer the points raised by the petitioner/plaintiff through work memo.. 2. The revision petitioners/plaintiffs who filed the suit against the respondents/defendants for permanent injunction from interfering with the possession and enjoyment of the plaint schedule property of Ac.0-58 cents in survey No.670/1-1, contended that the defendants 1 to 6 who are the owners of the neighbouring properties of the plaint schedule property are trying to pass through the property of the plaintiffs, though they have separate ways to reach the road and D-7 who is tenant of the first defendant is also following D-1 to D-6 in the like manner. The plaintiffs further contended that they laid boundary poles to prevent the defendants from going across the plaint schedule property, however the defendants are high handedly removing them in spite of resistance by the plaintiffs. 3. Along with the suit, the plaintiffs filed two Interlocutory Applications, one for granting temporary injunction and the other for appointment of commissioner. It is submitted by the learned counsel for the revision petitioners that the trial Court granted order of status quo in the petition filed for temporary injunction, whereas directed issue of notices to the respondents in the petition filed for appointment of commissioner. 4. He further submitted that in spite of order of status quo against the respondents, they are highhandedly removing the poles erected by the plaintiffs. Learned counsel further submitted that unless a commissioner is appointed, the physical features would be destroyed and there would not be any possibility for the plaintiffs to get the existing features noted; but without considering the same, the trial Court failed to exercise its jurisdiction to appoint commissioner and thus the plaintiffs approached this Court in revision. Learned counsel further submitted that unless a commissioner is appointed, the physical features would be destroyed and there would not be any possibility for the plaintiffs to get the existing features noted; but without considering the same, the trial Court failed to exercise its jurisdiction to appoint commissioner and thus the plaintiffs approached this Court in revision. Learned counsel submitted that the photographs of the existing features and the highhanded acts of the respondents in demolishing some of the poles were also submitted along with this revision petition to show bonafides of the petitioners/plaintiffs in seeking the relief of appointment of commissioner. 5. Since the respondents herein have not yet made appearance in the trial Court, learned counsel requested to dispense with notice to them in the revision petition. Further, he submitted that as the Court is empowered to appoint commissioner even before issuing of notice to the respondents/defendants, there is no need for issue of notices. 6. Along with this revision petition, an Interlocutory Application I.A.No.1 of 2022 is filed for appoint of advocate commissioner. Since the petitioners could show the urgency to appoint a commissioner, if such a relief is granted in the interlocutory application, it would virtually amounts to allowing the revision petition itself. It is settled law that as the provisions of Order XXVI CPC do not mandate issue of prior notice for appointing a commissioner, even without issue notices to the respondents, an advocate commissioner can be appointed and the only requirement under law is that the commissioner should serve notice to the other party before execution of the warrant. Therefore, where a Court finds the necessity to appoint a commissioner ex parte or before issue of notice to the respondents, it is always within the jurisdiction of a Court to appoint a commissioner. Moreover, the respondents have not yet made appearance before the trial Court, therefore, instead of passing an order in I.A.No.1 of 2022, this Court deems fit to pass order in revision petition itself. 7. As this Court finds it necessary to appoint a commissioner in view of the circumstances stated by the revision petitioners and the trial Court failed to exercise its jurisdiction, the revision petition can be allowed with certain directions to the trial Court. 8. 7. As this Court finds it necessary to appoint a commissioner in view of the circumstances stated by the revision petitioners and the trial Court failed to exercise its jurisdiction, the revision petition can be allowed with certain directions to the trial Court. 8. In the result, the Civil Revision Petition is allowed by setting aside the order dated 23-12-2022 in I.A.No.710 of 2022 in O.S.No.257 of 2022 on the file of the Court of Junior Civil Judge, Piduguralla and directing the trial Court to appoint an advocate as commissioner forthwith, on filing of the copy of this order, to note down the physical features of the plaint schedule property including measuring the same with the assistance of a Mandal Surveyor of Piduguralla Mandal and also answer work memos, if any given by both parties, by serving prior notices to both parties by the commissioner. The trial Court is directed to fix the fee payable to the commissioner. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.