Alladi Prabhakar Rao vs Gowlikar Leela Bai

This Civil Revision is filed by the petitioners who are the plaintiffs in O.S.No.118 of 2008 challenging the order dt.04.01.2022 of the Principal Junior Civil Judge-cum-Judicial First Class Magistrate, Jangaon in I.A.No.428 of 2008 in O.S.No.118 of 2008 dismissing the application of the petitioners filed under Order XXVI Rule 9 of CPC for appointment of an Advocate Commissioner.

Learned counsel for the petitioners submits that the suit was filed by the petitioners/plaintiffs for perpetual injunction and mandatory injunction and along with the said suit, the petitioners have filed two I.A.s. One petition was for interim injunction against further construction by the respondents/defendants and the same was allowed. The other petition was I.A.No.428 of 2008 for appointment of an Advocate Commissioner. He submits that I.A.No.428 of 2008 was pending for a long period and the same was taken up for hearing in the month of January, 2022 and was dismissed by order dt.04.01.2022, against which the present CRP is filed.

The learned counsel for the petitioners submitted that an Advocate Commissioner was sought to be appointed to note down the existing physical features obtaining on the suit lane, location of the pillars raised in the suit lane by their length and breadth, which will be helpful to the Hon’ble Court to decide the real dispute in controversy between the petitioners and the respondents. It is submitted that written statement has been filed by the defendants admitting the existence of pillars and also about the stopping of construction pursuant to the interim injunction granted by the Court. However, with regard to the suit claim of lane, there is a denial by the respondents and therefore, it is pertinent that an Advocate Commissioner should be appointed to visit the suit spot and examine and give a report with regard to the existence of the suit lane. He submitted that the lower Court has erred in dismissing the Application without observing that no prejudice would be caused to the respondents by the appointment of Advocate Commissioner for noting down the existing physical features of suit property. In support of his contention that Advocate Commissioner can be appointed to cause local inspection of the disputed land and to help the Court to render complete justice to the parties, he placed reliance upon the order of this Court in C.R.P.No.6896 of 2005 dt.10.03.2006 in the case of Mallikarjuna Srinivasa Gupta Vs. K. Sheshirekha 2006 (3) ALD 362.

Learned counsel for the respondents, on the other hand, has placed reliance upon the averments in the counter filed by the respondents and submitted that though the petitioners had filed the application for appointment of an Advocate Commissioner in the year 2008 itself along with the original suit, they have not pressed the same and have pressed for the consideration of said Application only after the trial has commenced and the evidence of P.Ws.1 to 6 has already been recorded. He submits that it is for the plaintiffs to prove their case by adducing evidence with regard to the subject matter of the case, and not by gathering evidence by appointment of an Advocate Commissioner. He also submitted that appointment of an Advocate Commissioner is a discretionary provision and therefore should not be used to fish out the evidence when the trial is almost over. He placed reliance upon the order of this Court in C.R.P.No.501 of 2013 dt.21.02.2013 in the case of Papasani Sankara Reddy Vs. Kandula Hanumantha Reddy and others (2013) 4 ALD 322 in support of this contention.

Having regard to the rival contentions and the material on record and also from the prayer in I.A.No.428 of 2008, it is seen that the petitioners have sought appointment of an Advocate Commissioner to note down the physical features of the suit site and the location of the pillars by their length and breadth, etc., and also the suit lane. As seen from the order in I.A.No.428 of 2008, the respondents have filed counter admitting the existence of the pillars, but there is no reference to the length and breadth of the pillars and also whether the pillars are on the suit lane. It is seen that the suit itself is for permanent injunction with regard to alleged common lane located in between the houses bearing Door Nos.2-6-140, 2-6-139, 2-6-138, 2-6-137, 2-6-136, 2-6-141 and 2-6-141/2. The question was whether there existed the common lane. The lower Court has observed that the existence or otherwise of the lane can be established by leading evidence and need not be gathered by appointment of an Advocate Commissioner. In the case of Mallikarjuna Srinivasa Gupta Vs. K. Sheshirekha (2006 (3) ALD 362 supra), this Court was considering whether an Advocate Commissioner can be appointed in a suit for declaration of title when an earlier application in a suit for injunction was already dismissed. The Court had held that by appointing a Commissioner for local inspection, no prejudice would be caused to any of the parties. In the case of Papasani Sankara Reddy Vs. Kandula Hanumantha Reddy and others ( (2013) 4 ALD 322 supra), this Court was considering whether an Advocate Commissioner can be appointed to gather evidence. The Court held that ordinarily the Commissioner is appointed where the Court is of the opinion that the available evidence is not enough to arrive at proper and correct conclusion for effectual adjudication of the disputes involved in the suit.

Therefore, in this case, whether appointment of an Advocate Commissioner is necessary for effectual adjudication of the case is to be seen. The existence of the lane can be determined not only by leading evidence but also by physical verification of the site. Therefore, no prejudice would be caused by appointment of an Advocate Commissioner.

In view thereof, this Civil Revision Petition is allowed and consequently I.A.No.428 of 2008 is also allowed. In order to ensure speedy conclusion of the proceedings, this Court deems it fit and proper to direct the Principal Junior Civil Judge-cum-Judicial First Class Magistrate, Jangaon that an Advocate Commissioner shall be appointed within 15 days from the date of receipt of a copy of this order and thereafter the report of the Commissioner shall be directed to be submitted within a period of one (1) month from the date of such appointment.

Pending miscellaneous petitions, if any, in this CRP shall stand closed.