THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.5163 OF 2013 DATED 18th JULY, 2014 Between:
Ravula Premdev Reddy … Petitioner and Akula Satheesh and others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.5163 OF 2013 O R D E R This CRP arises out of the order dated 26-11-2013 passed by the learned Principal Junior Civil Judge, Mahabubabad dismissing the application filed by the plaintiff in O.S.No.97 of 2010 seeking appointment of an advocate commissioner for noting down the physical features of the suit property. The petitioner before this Court is the unsuccessful plaintiff.
2. Despite service of notice, none appears for the respondents/defendants.
3. The suit O.S. No.97 of 2010 was filed for a perpetual injunction restraining the defendants from interfering with the plaintiff’s possession over the suit property. I.A. No.195 of 2013 in I.A. No.185 of 2010 in the said suit was filed to appoint an advocate commissioner for noting down the physical features of the suit property. The defendants filed a counter to the said IA wherein they specifically stated that the plaintiff had filed the suit with wrong boundaries and wrong survey numbers and that it was just and necessary to appoint an advocate commissioner to look at the suit schedule survey numbers and determine the extents and physical features. Despite the fact that the defendants conceded to and echoed the prayer of the plaintiff for appointment of an advocate commissioner, the Court below dismissed the IA being of the opinion that it was not open to the plaintiff to gather evidence in a suit for an injunction.
4. Though the proposition of law relied upon by the Court below is valid and proper, each case would have to be examined and resolved on the strength of its own facts and the proposition cannot be applied blindly across the board.
5. In the present case, there is a dispute as to the very identification of survey numbers in the light of the stand taken by the defendants in their written statement and also the counter filed in the subject IA. In that view of the matter, it was necessary to appoint an advocate commissioner to determine this issue. Ascertainment of the correct survey numbers and identity of the property would not amount to gathering evidence which would come within the purview of the settled legal proposition that a plaintiff in an injunction suit cannot gather evidence to build up his case after institution of the suit.
6. In that view of the matter, the CRP is allowed. The order under revision is set aside and the matter is remanded. The Court below is directed to appoint an advocate commissioner as prayed for. Pending miscellaneous petitions, if any, shall also stand dismissed. No costs.
SANJAY KUMAR, J 18th July, 2014 Svv