THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Civil Revision Petition No.3370 of 2014 Between:
Dated 26th December, 2014 Smt.Razia Sultana Shaheen And K.Papaiah and others …Petitioner …Respondents Counsel for the petitioner: Sri K.R.Koteswara Rao Counsel for respondent No.1: Sri P.Chandra Sekhar for Sri B.Chinnapa Reddy The Court made the following:
ORDER:
This civil revision petition is filed against the order, dated 19.06.2014, in I.A.No.479 of 2014 in I.A.No.395 of 2014 in O.S.No.530 of 2014, on the file of the learned I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar.
I have heard Sri K.R.Koteswara Rao, learned counsel for the petitioner, Sri P.Chandra Sekhar, learned counsel, representing Sri B.Chinnapa Reddy, learned counsel for respondent No.1, and perused the record.
The petitioner has filed the above-mentioned suit for perpetual injunction restraining the respondents from interfering with her peaceful possession and enjoyment of plot bearing No.2, admeasuring 568 sq.yards situated in Survey No.112/AAEE of Hyderguda Village, Rajendranagar Mandal and Municipality, Ranga Reddy District. In the said suit, the petitioner has also filed I.A.No.395 of 2014 for temporary injunction. In the said IA, respondent No.1 filed I.A.No.479 of 2014 under Order XXVI Rule 9 CPC for appointment of an Advocate Commissioner to note down the physical features and boundaries of the suit schedule property and also to take photographs thereof. The petitioner filed a counter affidavit resisting the said application. However, by the order impugned in this civil revision petition, the lower Court has allowed the said application.
A perusal of the order under revision would show that though the IA was stiffly resisted by the petitioner, no reasons whatsoever have been assigned by the lower Court. The order of the lower Court is therefore liable to be set aside for this reason alone. Even otherwise, I find that the application filed by respondent No.1 is not worthy of being entertained as in his pleading respondent No.1 has himself stated that according to him plot No.2 is not in existence on ground and he is not aware whether such a plot is located or not.
Under Order XXVI Rule 9 CPC, a Commissioner is appointed inter alia for elucidating any matter in dispute. Ordinarily, in a suit for injunction an Advocate Commissioner is not appointed for the reason that the plaintiff has to prove his possession. Therefore, it is for the petitioner/plaintiff to produce necessary evidence to prove not only the existence of the suit schedule property but also her possession by adducing oral and documentary evidence. As a defendant, it is wholly unnecessary for respondent No.1 to seek appointment of an Advocate Commissioner especially when he has his own doubt as to whether the suit schedule property is in existence or not. An Advocate Commissioner cannot be appointed to note down the physical features of plot which is allegedly not in existence. The lower Court has completely lost sight of these aspects and mechanically allowed the application.
For the above-mentioned reasons, the order under revision is set aside and I.A.No.479 of 2014 is dismissed. The civil revision petition is accordingly allowed.
As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.4615 of 2014 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 26th December, 2014
VGB