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2022 DIGILAW 558 (AP)

Kommineni Rama Kotaiah v. Jetti Siva Parvathi

2022-06-17

NINALA JAYASURYA

body2022
ORDER : The present Revision Petition is filed against the Order dated 28.10.2021 passed in I.A.No.4 of 2020 in A.S.No.23 of 2018 on the file of the Court of the Senior Civil Judge, Atmakur, Kurnool District. 2. Heard Mr.K.Siva Rama Krishna, learned counsel for the petitioner. Despite service of notice, none entered appearance on behalf of the respondent. 3. One Kommineni Rama Kotaiah, herein after referred to as the plaintiff filed O.S.No.201 of 2010 on the file of the Court of the Junior Civil Judge, Atmakur, Kurnool District. He filed the said suit seeking Permanent Injunction restraining the respondent/defendant and her men etc., from in any way encroaching or interfering with his peaceful possession and from objecting him from placing fencing to the plaint schedule site shown as “ABCD” in the plaint plan. He purchased the plaint schedule site along with another site shown as “GHIJ” in the plaint plan under Registered Sale Deed bearing Document No.1850/78 dated 21.07.1978 and he was in peaceful possession and enjoyment of the same. 4. In the plaint, it was averred that he raised a “kottam” in “GHIJ” site and the plaint schedule site is kept as open place to tether the cattle and also to store the grass etc., It was further averred that towards the south of the plaint schedule site, the husband of the defendant purchased an extent of Ac.0.22 cents of site and also another site of an extent of Ac.0.07 cents shown as “CDEF” and “IJKL” respectively in the plaint plan. It is also stated that the respondent/defendant is trying to encroach into the site of the plaintiff shown in the plaint schedule and when he tried to lay fencing to the “ABCD” site, the respondent/defendant raised objection. While stating that the respondent/defendant has no right to object from placing the fencing to the site of the plaintiff to an extent of Ac.0.22 cents shown in the plaint schedule, a decree for Permanent Injunction and other reliefs were sought for. 5. The respondent/defendant filed a Written Statement denying the allegations of encroachment and alleged obstruction to the laying of fence by the plaintiff. In the Written Statement it was admitted that the plaintiff purchased the plaint schedule extent of Ac.0.22 cents and that the husband of the respondent/defendant purchased Ac.0.29 cents on the south of the plaint schedule site. 5. The respondent/defendant filed a Written Statement denying the allegations of encroachment and alleged obstruction to the laying of fence by the plaintiff. In the Written Statement it was admitted that the plaintiff purchased the plaint schedule extent of Ac.0.22 cents and that the husband of the respondent/defendant purchased Ac.0.29 cents on the south of the plaint schedule site. But, the plaintiff by showing the wrong extent is trying to encroach into the site of the defendant. 6. During pendency of the suit, the plaintiff died and his wife, 2nd petitioner herein was brought on record vide Order dated 11.06.2015 passed in I.A.No.135 of 2015. 7. The 2nd petitioner/2nd plaintiff was examined as P.W.1, examined P.Ws 2 and 3 in support of her case and got marked Exs.A.1 and A.2 i.e., Plaint plan and Certified copy of Sale Deed dated 21.07.1978 respectively. On behalf of the respondent/defendant D.Ws 1 and 2 were examined and Ex.B.1 Registered Sale Deed dated 21.07.1978 was marked. 8. The learned Trial Judge by Judgment dated 22.12.2017 dismissed the suit. Against the said Judgment, the 2nd petitioner/2nd plaintiff carried the matter by way of appeal i.e., A.S.No.23 of 2018 on the file of the Court of the Senior Civil Judge, Atmakur, Kurnool District. During pendency of the appeal, the 2nd petitioner/appellant filed I.A.No.4 of 2020 under Order XXVI, Rule 9 CPC R/w Section 151 CPC seeking to appoint an Advocate Commissioner to inspect the suit locality with the assistance of the Mandal Surveyor, Amtakur to check the measurements of the suit schedule site and surrounding sites including the defendant/respondent’s site, as per the registered document of the plaintiff’s in document No.1850/1978 and to take photographs, draw a plan and file report. The said application was opposed by the respondent/defendant by filing a counter. The Appellate Court after considering the rival submissions, vide Order dated 28.10.2021, dismissed the said application. Aggrieved by the same, the present Revision Petition came to be filed. 9. The learned counsel for the petitioners while drawing the attention of this Court to the averments in the plaint and the rough sketch inter alia submits that the Order of the learned Appellate Court in dismissing the application in question is un-sustainable and is liable to be set aside, as it failed to exercise the jurisdiction vested in it. 9. The learned counsel for the petitioners while drawing the attention of this Court to the averments in the plaint and the rough sketch inter alia submits that the Order of the learned Appellate Court in dismissing the application in question is un-sustainable and is liable to be set aside, as it failed to exercise the jurisdiction vested in it. He submits that the learned Appellate Court committed a material irregularity in coming to a conclusion that in a suit for Permanent Injunction, an Advocate Commissioner cannot be appointed. He also submits that merely because the petitioners had not sought for appointment of an Advocate Commissioner during the pendency of the suit, the same would not come in the way of the petitioners to seek appointment of an Advocate Commissioner, at the stage of appeal. He submits that the purpose for seeking appointment of Advocate Commissioner is only for taking the measurements of the plaint schedule property, but not to find out as to who is in possession of the same. While submitting that no prejudice would be caused to the respondent/defendant, if an Advocate Commissioner is appointed, the learned counsel submits that the report of the Advocate Commissioner would assist the Court in adjudicating the matter in an effective manner. 10. The learned counsel would also contend that the observation of the learned Appellate Court with reference to the procedure contemplated for adducing additional evidence in the Appellate Court is misconceived. The learned counsel would further submits that filing of the application under Order XLI, Rule 27 of CPC would arise only on submission of report by the Advocate Commissioner, but not at the time of seeking appointment under Order XXVI, Rule 9 of CPC. The learned counsel further placed reliance on the decisions in K.S. Palanisamy vs. Ramasamy and Ors., ( 2017 (2) MLJ 190 ) And Gajraj and Ors. Vs. Ramadhar and Ors., ( AIR 1975 All 406 ) in support of his contentions and urges for allowing the Revision Petition by setting aside the Order under challenge. 11. This Court had considered the submissions made by the learned counsel for the petitioners and perused the material on record, including the decisions referred to supra. 12. Vs. Ramadhar and Ors., ( AIR 1975 All 406 ) in support of his contentions and urges for allowing the Revision Petition by setting aside the Order under challenge. 11. This Court had considered the submissions made by the learned counsel for the petitioners and perused the material on record, including the decisions referred to supra. 12. Before adverting to the contentions raised by the learned counsel for the petitioners, it may be appropriate to note that there is no dispute with regard to the legal position that Advocate Commissioner can be appointed even at the appellate stage. 13. Order XXVI, Rule 9 R/w Section 107 of CPC empowers to the Appellate Court to issue Commission for legal investigation and other purposes mentioned therein and the said power is not controlled by Order XLI, Rule 27 of CPC. However, the necessity to appoint an Advocate Commissioner would depend upon the facts and circumstances and it is not necessary that in each and every case, there must be a report of Advocate Commissioner. When there is controversy as to identification, location or measurements of land, local investigation can be done at the early stage, to enable the parties to come to trial as per the report of the Advocate Commissioner and to adduce rebuttal evidence by the aggrieved party. 14. In the present case, the petitioners had not sought for appointment of Advocate Commissioner during the pendency of the suit and went ahead in the matter on the basis of the evidence let in the trial of the suit. Ultimately, the suit was dismissed after due consideration of oral and documentary evidence on record. When the appeal is coming up for hearing, the petitioner/appellant filed the I.A in question at that stage. In the affidavit filed in support of the I.A, no plausible reason was assigned, as to the circumstances, which necessitated the filing of the said application, except that such an application for appointment of Advocate Commissioner was unfortunately not filed in the Lower Court. In the affidavit filed in support of the I.A, no plausible reason was assigned, as to the circumstances, which necessitated the filing of the said application, except that such an application for appointment of Advocate Commissioner was unfortunately not filed in the Lower Court. No doubt, as rightly contended by the learned counsel for the petitioners, the question of receiving additional evidence would arise only after the Advocate Commissioner is appointed and a report is submitted, but in the absence of any specific plea or prejudice to the petitioners/plaintiffs that may be caused to them by virtue of non-appointment of the Advocate Commissioner, the application under Order XXVI, Rule 9 of CPC merits no consideration. The appointment of the Advocate Commissioner is the discretion of the Court and unless the parties make out a case with specific pleadings, the same cannot be allowed in a routine manner. 15. This Court, therefore finds no merit in the application filed by the 2nd petitioner at the stage of appeal. Be that as it may. Though the view of the learned Trial Judge that in a suit for Permanent Injunction, no Advocate Commissioner can be appointed, is not correct, while dismissing the application filed by the petitioners/plaintiffs he followed the decision of a learned Judge in Penta Urmila and Others vs. Karukota Kumaraswamy and Others (2005) 1 ALT 811 ). 16. It is also a case, wherein the suit for Permanent Injunction was dismissed, against which, an appeal was preferred and during the pendency of the same, the appellants/plaintiffs filed an application under Order XXVI, Rule 9 of CPC seeking appointment of an Advocate Commissioner. The said application was allowed by the Appellate Court. An Advocate Commissioner was appointed for verification of the features of the suit schedule property and the property claimed by the defendants in the suit, with reference to the FMB and revenue records. In the Revision Petition carried against the said Order by the defendant in the suit, the learned Judge set aside the Order of appointment of Advocate Commissioner, in exercise of powers under Article 227 of the Constitution of India, inter alia holding as follows:- “In a suit for permanent injunction, the vital and important issue is whether the plaintiffs are in possession of the plaint schedule land and whether there was attempt by the defendant/s to interfere with such possession of plaintiffs. The burden is entirely on the plaintiffs to bring convincing and cogent evidence on record and for so doing, it is not permissible for them to invoke Order XXVI, Rule 9, which is intended for different purpose. Further, if at this stage, Advocate Commissioner files a report, as directed by the Appellate Court with the assistance of the Mandal Surveyor it would certainly amount to introducing additional evidence which is ordinarily not permissible unless proper application is made under Order XLI, Rule 27 satisfying the conditions therein. No such contentions were pleaded in the affidavit accompanying I.A.No.87 of 2004 and therefore it was improper for the learned Appellate Judge to appoint Advocate Commissioner. This would certainly amount to improper exercise of jurisdiction and misdirection in law which would occasion failure of justice.” 17. The learned Trial Court, in the light of the above referred decision came to the conclusion that the petitioner is not entitled for appointment of Advocate Commissioner. Such a view of the learned Appellate Court in the light of the expression in the above referred case cannot be treated as perverse or failure to exercise the jurisdiction vested in it. Though the learned counsel for the petitioner made strenuous efforts to persuade by referring to the decisions relied on by him which are of persuasive value, this Court is not inclined to accept the same, in view of the direct decision of the learned Single Judge of this Court, referred to above, which is similar to the fact situation, like in the present case. 18. In the light of the conclusions arrived at supra, this Court is not inclined to interfere with the Order under Revision in exercise of its powers under Article 227 of the Constitution of India. 19. The Civil Revision Petition is accordingly, dismissed. There shall be no Order as to costs. As a sequel, miscellaneous applications, if any, pending shall stand closed.