HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH FRIDAY, THE FOURTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.1728 of 2014 Between:
Yarabala Govinda And Smt.Rudraraju Venkata Ramana … Petitioner … Respondent THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.1728 of 2014 ORDER:
This revision petition has been filed questioning the order dated 09.05.2014 passed in I.A. No.124 of 2014 in O.S. No.270 of 2012 by the I Additional Junior Civil Judge, Visakhapatnam.
The revision petitioner and the respondent are the plaintiff and the defendant, respectively in O.S. No.270 of 2012 that was filed under Order VII Rule 1 read with Section 26 CPC seeking to grant permanent injunction restraining the defendant her men, agents and whosoever acts on her behalf from ever interfering with the peaceful possession and enjoyment of the plaintiff over suit schedule property in any manner whatsoever. In the said suit, the petitioner-plaintiff filed I.A. No.124 of 2014 under Order XXVI Rule 9 CPC seeking to appoint an Advocate Commissioner for the purpose of localising the suit schedule property and to note down the physical features of the schedule property.
The learned Judge dismissed the said application, inter alia, on the ground of belatedness and that the suit stand posted for argument, after completion of petitioner’s side. Questioning the same, the petitioner-plaintiff filed the present revision petition.
The learned counsel appearing for the petitioner-plaintiff would submit that the Court below committed an error in dismissing the application on the ground that the suit is posted for arguments of the respondent-defendant after completion of petitioner side and also on the ground of belatedness. The learned counsel pointed out from the paragraph No.15 of the written statement filed by the respondent-defendant that the site covered by the present plaint schedule is also included in the site of 29½ cents and this fact can be clearly established by its localisation with reference to the revenue records. In this regard, he submitted that when there is dispute with regard to schedule property, in fact, the respondent-defendant has to seek for appointment of an Advocate Commissioner to localise the property instead, when the petitioner-plaintiff is seeking for the same, the respondent- defendant is objecting for it only on the ground that the petitioner-plaintiff is trying to protract the matter. The Court below dismissed the said application specifically holding that it is belated stage. If the Court below found any delay in filing the application on the part of one party, Court may impose reasonable costs and ought to have allowed the application. In support of his contentions, he placed reliance in the cases reported in SHAIK ZAREENA KASAM v. PATAN SADAB KHAN AND OTHERS
[1]
, DONADULU UMA
[2] DEVI v. GIRIKA KATAMAIAH @ BASAIAH AND OTHERS and
VELAGA NARAYANA AND OTHERS v. BOMMAKANTI SRINIVAS AND [3] OTHERS and submitted that if an Advocate Commissioner is appointed, future complications can be avoided and no prejudice would be caused to the respondent-defendant otherwise, the petitioner-plaintiff will put to irreparable loss, hence he sought to set aside the impugned order.
On the other hand, the learned counsel appearing for the respondent- defendant would submit that both sides adduced their respective evidence, petitioner-plaintiff submitted his arguments and the suit is posted for arguments of the respondent-defendant. At this belated stage, no Advocate Commissioner is required to be appointed and under the guise of localising the scheduled property and noting down its physical features, the petitioner- plaintiff is trying to secure additional evidence and to protract the matter. Observing above all, the Court below had rightly dismissed the application and passed the impugned order therefore, no interference of this Court is required.
Heard the learned counsel for the petitioner-plaintiff and the learned counsel for the respondent-defendant and perused the material on record.
It is not in dispute that both side adduced their evidence and the petitioner-plaintiff concluded his argument and the suit is posted for arguments of the respondent-defendant. Since the petitioner-plaintiff specifically pointed out the para 15 of the written statement filed by the respondent-defendant with regard to dispute in localising the property, it is pertinent to extract the said para, which reads as under:
“15. The defendant humbly submits further that the said site of 92½ cents consists of not only the site of 2750 Suare Yards occupied by the 11plots; each admeasuring 250 Square Yards; formed in it i.e. that 92½ cents of land but also consists of the site occupied by the roads laid in the layout formed in that site. The defendant humbly submits further that the property, referred as item no.1 in the scheduled appended to this written statement, admeasuring 110 Square Yards, is also included as an integral part of the site of 2750 Square Yards covered by those 11 plots. The site covered by the present plaint schedule is also included in the said site of 29½ cents and this fact can be clearly established by its localisation with reference to the revenue records.”
From the above, it is clear that there is some dispute with regard to identification of the property in dispute. In view of para 15 of the written statement filed by the respondent-defendant, I am of the view that the impugned order is liable to be set aside and accordingly, the same is set aside and the matter is remitted to the Court below with a direction to pass fresh orders, in accordance with law, taking into consideration para 15 of the written statement, filed by the respondent-defendant, within a period of two weeks, from the date of receipt of a copy of this order.
Accordingly, this revision petition is disposed of. As a sequel, miscellaneous petitions, if any, shall stands closed. There shall be no order as to costs.
JUSTICE G.CHANDRAIAH Date: 04.07.2014 Note: Issue CC in two days. B/o.
LSK
[1] 2011 (4) ALD 231
[2] 2013 (2) ALD 86
[3] 2014 (3) 605