HON’BLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.4763 of 2014
Date : 19-12-2014
Between:
Gurram Bixam, S/o.Narayana, 48 years, Occ: Business, R/o.H.No.35-321, Prakash Nagar, Miryalaguda Town, Nalgonda District.
… Petitioner and Pelapolu Satyanarayana, S/o.Peda Mattaiah, 62 years, Occ: Agriculture, R/o.Jepthiveerappagudem village, Miryalaguda Mandal, Nalgonda District.
… Respondent HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4763 of 2014
ORDER:
The defendant in O.S.No.195 of 2009 on the file of the Court of Additional Junior Civil Judge, Miryalaguda, Nalgonda District, is the petitioner in the present revision filed under Article 227 of the Constitution of India. This revision assails the order passed by the said Court on 02.12.2014, dismissing the I.A.No.72 of 2014 filed by the defendant/ petitioner herein under the provisions of Order 26 Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter will be referred to as ‘the Code’).
The respondent herein instituted the suit for perpetual injunction in respect of 315 square yards in Sy.No.797 of Miryalaguda town, Nalgonda District. Resisting the said suit, the defendant/petitioner herein filed a written statement. In the said suit, the defendant filed the present application in I.A.No.72 of 2014 under Order 26 Rule 9 r/w Section 151 of the Code for appointment of advocate commissioner to note down the physical features and to know whether the petition schedule properties are situated in Sy.No.697 or 797 of Miryalaguda village, Nalgonda District. Resisting the said application, the plaintiff/respondent herein filed a counter. The learned Junior Civil Judge, by virtue of an order dated 02.12.2014, dismissed the said application.
This revision calls in question the said order passed by the learned Additional Junior Civil Judge, Miryalaguda, Nalgonda District.
Heard Smt. S.Annapurna, learned counsel for the defendant/ petitioner herein and Sri V.Venugopal Rao, learned counsel for the plaintiff/ respondent herein, apart from perusing the material available before the Court.
Challenging the legal substantiality of the order impugned, it is contended by the learned counsel for the defendant/petitioner herein that the order passed by the learned Junior Civil Judge is erroneous, contrary to law and is opposed to the provisions of Order 26 Rule 9 of the Code. It is further contended by the learned counsel that it would be highly essential to appoint advocate commissioner for doing complete justice. It is nextly contended by the learned counsel that since the petitioner satisfied the ingredients of Order 26 Rule 9 of the Code, the learned Junior Civil Judge is not justified in rejecting the application. It is further contended that if the application is allowed, the same will not cause any prejudice to the other side. In support of her contentions, the learned counsel places reliance on the judgments of this Court in Donadulu Uma Devi v. Girika Katamaiah @ Basaiah and others and Shaik Zareena Kasam v. Patan Sadab Khan and others.
Per contra, supporting the order under challenge, it is strenuously contended by the learned counsel for the plaintiff/respondent herein that the order passed by the learned Junior Civil Judge is in accordance with the provisions of Order 26 Rule 9 of the Code and there is no illegality nor any fundamental infirmity in the impugned order which warrants interference of this Court under Article 227 of the Constitution of India.
In the above backdrop, now the issues which this Court is called upon to answer in the present revision are:
a. Whether the order under challenge is in conformity with the provisions of Order 26 Rule 9 of the Code? and
b. Whether the order impugned requires any correction by this Court under Article 227 of the Constitution of India?
In the present case, the respondent herein filed the suit for perpetual injunction in the month of June, 2009, and resisting the plaint averments, the petitioner herein filed written statement in the month of October, 2009. The petitioner herein filed the present application in I.A.No.72 of 2014, seeking to appoint advocate commissioner to note down the physical features and to know whether the petition schedule properties are situated in Sy.No.697 or 797 of Miryalaguda.
A perusal of the order impugned clearly and categorically discloses that the Court below took into consideration the conduct of the defendant and also the order passed by this Court in C.R.P.No.2244 of 2014 and passed impugned order, rejecting the request of the petitioner herein. In the facts and circumstances of the case and in view of the categoric and cogent reasons recorded by the Court below, the judgments cited by the learned counsel for the petitioner would not render any assistance to the petitioner herein. It is a settled and well established proposition of law that unless the order impugned suffers from fundamental infirmity, foundational defect and jurisdictional error, the jurisdiction of this Court cannot be invoked under Article 227 of the Constitution of India. Since the Court below assigned cogent and convincing reasons for rejecting the relief, this Court finds absolutely no justification to meddle with the order passed by the Court below.
For the aforesaid reasons, the civil revision petition is dismissed. No order as to costs. As a sequel, miscellaneous petitions, if any pending in this civil revision petition, shall stand closed.
A.V.SESHA SAI, J Date: 19.12.2014
siva
HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4763 of 2014 Date : 19-12-2014 siva