Lingala Venkanna vs Palnati Yugendhar

Heard learned counsel for the petitioner Sri J Venkateshwar Reddy and learned counsel for respondents Sri M Roopender.

The parties are referred to as arrayed in the suit. The suit is filed praying to grant decree of perpetual injunction. Plaintiff filed I.A.No.153 of 2021 under Order 39 Rules 1 and 2 of C.P.C. to grant temporary injunction. The trial Court by order dated 2.3.2021 granted temporary injunction. At this stage first defendant filed I.A.No.295 of 2021 in I.A.No. 153 of 2021 under Order 26 Rule 9 of Civil Procedure Code.

By order dated 02.07.2021, the Court of II Additional Junior Civil Judge, Warangal allowed I A No. 295 of 2021 and Advocate Commissioner was appointed to locate whether the suit schedule property is in survey number 124 or in survey number 121 of Bheemaram village, to demarcate the boundary line between the land in survey numbers 121 and 124 and to note the measurements of encroachment of land in survey No.121. This revision is preferred by plaintiff against the order in I A No. 295 of 2021.

Learned counsel for petitioner vehemently contended that the trial Court erred in appointing the Advocate Commissioner even before the issues were framed and trial commenced. Further, the trial Court erred in appointing Advocate Commissioner in an application filed in the injunction application of the plaintiff. According to learned counsel, it is premature to go into these aspects.

Per contra, learned counsel for defendants contend that as the dispute is on the location of respective house plots in concerned survey numbers, identification of boundaries of respective properties helps in resolving the inter-se dispute in a more proper manner.

Having regard to Order XXVI Rule 9 of C.P.C, competency of trial Court to appoint Advocate Commissioner for the purpose of elucidating any matter in dispute is never in dispute. The only plea urged by the learned counsel for the plaintiff is that it was premature to appoint the Advocate commissioner.

"Order XXVI Rule 9: Commissions to make local investigations: In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of mesne profits or damages or annual net profits, the court may issue a commission to such persons it thinks fit directing him to make such investigation and to report thereon to the court:

Provided that, where the State Government has made rules as t o the persons to whom such commission shall be issued the court shall be bound by such rules".

Order XXVI Rule 9 vests wide discretion to the Court to appoint a Commissioner to make local investigation. In what circumstances such discretion can be exercised depends on facts of the given case. The terms/words used in this order such as ‘requisite’, ‘proper for the purpose of elucidating any matter in dispute’ give enough guidance to the trial Court.

From the long line of precedent decisions on the scope of power to appoint Commissioner, it is beyond pale of doubt that trial Court can appoint Commissioner for local investigation at any stage of the suit. “Commission for the said purpose can be issued prior to or after the parties let in their evidence.” (Velaga Narayana and others v. Bommakanti Srinivas and others 2014 (4) ALT 152); “Even ex parte commission can be issued, if the Court deems that a local investigation is requisite” (C.Veeranna v. C.Venkatachalam) AIR 1959 AP 170

8.1. In P.Moosa Kutty AIR 1953 Madras 717, learned single Judge of Madras High Court observed,

“If a commission is not going to be issued until the defendant appears, most often there will be no point in taking out a commission, because the object of the commission itself would be lost and incriminating circumstances would be obliterated”.

8.2. In N.Savitramma and others vs. B.Changa Reddy 1988 *1) APLJ (HC) 45, considering the view expressed by the Madras High Court in P.Moosa Kutty AIR 1953 Madras 717, this Court observed,

“15. The question as to when a commissioner could be appointed, should be with the wide discretion of the trial court, but it cannot be said that no commissioner could be appointed before the issues are framed or the evidence is led. Decided cases which are binding on me, hold that a commissioner could be appointed even ex-parte….”

8.3. In Bandaru Mutyalu, this Court held,

“19. … I hold that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce evidence in rebuttal.”

( emphasis supplied)

Having regard to wide discretion vested in the trial Court it must exercise sound discretion and apply its mind before exercising its discretion. It cannot be ordered in a routine manner. It must remind itself to the fact that appointment of Commissioner is to aid the Court in assessing the rival claims and in arriving at just conclusion and is not intended to aid a party to a suit to gather evidence or to subvert process of adjudication. Appointment of Advocate Commissioner does not impinge upon right or claim of a party to the suit. A party can always test the correctness of the contents in the report of the Advocate Commissioner. In a revision against the decision of the trial Court to appoint Commissioner, this Court requires to consider whether in the given facts of a case the trial Court has exercised its discretion properly or has over stepped. It is a limited enquiry.

The question for consideration is whether facts of this case warrant appointing Commissioner for conducting survey and identifying the location of the suit schedule land in a particular survey number at the initial stage ?

From the pleadings of parties to the suit, it appears that while land claimed by the plaintiff is in Sy.No.124, the land claimed by the defendants is in Sy.No.121 and both survey numbers are adjacent to each other. Plaintiff alleges that defendants are obstructing and interfering in the peaceful possession and enjoyment of the plaintiff’s property, and damaged boundary stones and tried to enter illegally into his land. He therefore instituted the suit praying to grant decree of perpetual injunction and also obtained temporary injunction. The allegation of earlier survey exercise is denied by the plaintiff. According to him, his property is surrounded by an existing compound wall.

Per contra, the first defendant contends that in the guise of injunction order plaintiff attempted to encroach into his land and overnight raised temporary compound wall. He contends that there was a similar dispute earlier. To resolve the dispute a survey was proposed, surveyor issued notices to conduct survey but no survey was conducted as plaintiff prevailed upon the survey authorities not to conduct survey.

The trial Court noticed that both parties are claiming same property, though extent of land claimed is different and survey numbers are different. Therefore, trial Court opined that to appreciate the controversy in a better manner and go to the root of the dispute the suit land be located and demarcated.

It is appropriate to note that first defendant also filed I.A. No. 319 of 2021 in I A No. 153 of 2021 taking recourse to Order 26 Rule 9 of C.P.C., to appoint an Advocate Commissioner to note down physical features of compound wall and shed in the suit schedule property. Having noted the submission of both parties on existence of compound wall and shed the dispute as to when the structures were raised could be considered after evidence is recorded, rejected the application.

This shows that the trial Court had the comprehension of the controversy when it considered the application. It is a well considered decision supported by reasons. This Court does not see any error in exercising the discretion warranting correction. The revision is dismissed. It is made clear that there is no expression of opinion on merits. Pending miscellaneous applications stand closed. No costs.