HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION No.1566 of 2014 Date:15.07.2014 Between:
Sajidunnissa, W/o Syed Ishquddin And:
Sukur Ali, S/o Abdul Kasim ……Petitioner ..…Respondent Counsel for the petitioner: Sri Mehdi Hussain Counsel for the respondent: Sri Mohd. Ilyas The Court made the following:
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION No.1566 of 2014 ORDER:
This Civil Revision Petition is filed against order, dated 08.05.2014, in I.A.No.161 of 2014 in O.S.No.453 of 2013 on the file of the learned II Additional Junior Civil Judge, Ranga Reddy District.
The respondent filed the above-mentioned suit for permanent injunction restraining the petitioner from interfering with his possession of Plot Nos.17 and 18 allegedly situated in Survey No.50 of Roshandowla Village, Saroornagar Mandal, Ranga Reddy District.
In the said suit, the respondent filed I.A.No.161 of 2014 under Order XXVI Rule 9 read with 151 of the Code of Civil Procedure for appointing an Advocate- Commissioner for the purpose of local inspection and for ascertaining with the help of the Mandal Surveyor as to in which Survey number, among Survey Nos.49 and 50, the suit schedule property is situated. This application was resisted by the petitioner by filing counter-affidavit. The lower Court by the order under revision has allowed the said application.
Heard the learned counsel for both parties and perused the record.
The settled legal principle is that generally, in a suit for injunction, an Advocate-Commissioner is not appointed for, the plaintiff cannot seek to gather evidence through the Advocate-Commissioner. As the respondent-plaintiff has come to the Court with the specific plea that his property is situated in Survey No.50, the burden lies on him to substantiate his case by adducing necessary evidence. By appointing an Advocate-Commissioner for ascertaining as to in which Survey number the suit schedule property is situated, the lower Court has virtually abdicated its function and delegated its power to the Advocate-Commissioner to adjudicate as to in which Survey number the suit schedule property is situated.
I am, therefore, of the opinion that the lower Court has committed a serious jurisdictional error in appointing an Advocate-Commissioner in a suit filed for bare injunction.
The order under revision is, accordingly, set aside and the Civil Revision Petition is allowed.
As a sequel to disposal of the Civil Revision Petition, interim order, dated 12.06.2014, is vacated and CRPMP.No.2202 of 2014 shall stand disposed of as infructuous.
15th July, 2014 DR
JUSTICE C.V.NAGARJUNA
REDDY