THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 1680 OF 2011 Dated:24-10-2014
Between:
Smt. Sharada Bai and another ... PETITIONERS AND Sri Pramod Kumar Vijayvergi and four others .. RESPONDENTS THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 1680 OF 2011 ORDER:
The petitioners filed O.S No.1898 of 2010 in the Court of VI Junior Civil Judge, City Civil Court, Hyderabad against the respondents for the relief of mandatory injunction in respect of a passage. Along with the suit, they filed I.A No.861 of 2010 under Order XXVI Rule 9 CPC, with a prayer to appoint an Advocate Commissioner to make local investigation with the help of a civil engineer, about all the constructions made by the respondents, to find out the total measurement of the construction including the common passage and to note down the physical features of the structure standing on the suit premises. The application was opposed by the respondents. The trial Court dismissed the application through order dated 01-04-2011. Hence, the revision.
Heard Sri Gade Venkateswara Rao, learned counsel for the petitioners and Sri Bankatlal Mandhani, learned counsel for respondent Nos.3 and 4.
The suit was filed for the relief of mandatory injunction requiring the respondents to remove a structure said to have been made on the passage. First of all, the petitioners have to establish the existence of a passage and then the alleged encroachment by the respondents. This naturally requires adducing of oral and documentary evidence. The petitioners wanted, at the threshold of the suit itself, the appointment of an Advocate Commissioner to get information as to those aspects. The application was totally impermissible and it clearly amounted to an attempt to gather evidence. The trial Court has taken the correct view of the matter.
The C.R.P is accordingly dismissed. It is however left open to the petitioners to take necessary steps to establish their case in the course of trial and if they are able to satisfy the trial Court, after the completion of the recording of evidence, this order shall not come in the way of appointment of Advocate Commissioner for that purpose.
The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 24-10-2014 ks