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M/s Adarsh Constructions, Hyderabad & Another v/s Qamaarunnissa Begum, Hyderabad & Another

    CRP No. 714 of 2016
    Decided On, 26 April 2022
    At, High Court of for the State of Telangana
    By, THE HONOURABLE MR. JUSTICE A. VENKATESHWARA REDDY
    For the Petitioners: Resu Mahender Reddy, Advocate. For the Respondents: Aequitasjuris Law Firm, Advocates.


Judgment Text
1. This Civil Revision Petition is filed by the petitioners/ defendants under Article 227 of the Constitution of India, assailing the orders dated 13.11.2015 in IA No.740 of 2015 in IA No.181 of 2015 in OS No.303 of 2015 on the file of the learned II Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar.

2. This application in IA No.740 of 2015 is filed under Order-26 Rule-9 of the Civil Procedure Code, 1908 (for short ‘CPC’) to appoint advocate commissioner for making local investigation by surveying and demarcating the property claimed by the defendants as per the plaint annexed to the registered sale deed dated 20.08.1965 and A and B schedule properties belonging to the plaintiffs with the assistance of the Surveyor attached to the Survey and Land Records, Ranga Reddy District. The application in IA No.740 of 2015 was filed in IA No.181 of 2015 filed under Order-39 Rules 1 & 2 CPC during the enquiry. The plaintiffs have filed the original suit in OS No.303 of 2015 and the defendants have also filed their written statement. Along with the suit, the plaintiffs have filed IA No.181 of 2015 for temporary injunction under Order-39 Rules 1 & 2 CPC. During the enquiry, in this application the plaintiffs have filed the present application for appointment of advocate commissioner for survey of the schedule property and the property claimed by the defendants.

3. Accordingly, the IA No.740 of 2015 was allowed and Sri D. Mukesh Kumar, Advocate, was appointed as advocate commissioner for the purpose of local investigation for suit schedule A & B properties and the schedule property as per the registered sale deed dated 20.08.1965 with the assistance of Surveyor attached to the Survey and Land Records, Ranga Reddy District and to file his report along with the rough plan to the specific direction to the advocate commissioner not to mention as to in possession of the suit schedule properties. Further, the Advocate Commissioner shall give notice to both the parties and their counsel before execution of the warrant. Be it stated that as per the Case Status Information, as on the date, the learned Advocate Commissioner has not submitted his report.

4. The defendants have filed this civil revision petition assailing the order impugned alleging that the Court below erred in appointing the advocate commissioner in a suit for perpetual injunction at the premature stage. The plaintiffs have filed various speculative suits in OS No.509 of 2014 on the file of VIII Additional Senior Civil Judge, Ranga Reddy District and OS No.1275 of 2014 on the file of the VII Additional Senior Civil Judge, Ranga Reddy District describing the distinct numbers, extents and boundaries and in all those suits interim injunction applications have filed under Order-39 Rules 1 & 2 CPC, but they were dismissed and that the plaintiffs have not assigned any reason for appointment of advocate commissioner.

5. In fact, during enquiry in IA No.181 of 2015 filed under Order-39 Rules 1 & 2 CPC, the plaintiffs have filed the present application for appointment of advocate commissioner to make local inspection by surveying and demarcating the property claimed by the defendants as per the registered sale deed dated 20.08.1965 and schedule A & B properties. The defendants have referred to various proceedings before the revenue authorities with reference to the ownership and possession of Mohd. Ahmed Ali in respect of the land admeasuring Ac.5.00 guntas in Survey No.194/1 of Begumpet village alleging that the second defendant being lawful purchaser and possessor of the properties commenced construction of apartments or individual villas in the said land. But, the Court below erred in allowing the application at this premature stage to localize the properties claimed under registered sale deed dated 20.08.1965 and schedule A & B properties. The learned counsel for the revision petitioners/defendants relied on the principles laid in the following decisions:

i) Arvind Kumar Agarwal v. Legend Estates (P) Ltd., Ranga Reddy District, Hyderabad (2015 (2) ALD 206); and

ii) A. Gopal Reddy v. R. Subramanyam Reddy and another (2013 (4) ALD 347).

6. Per contra, the learned counsel for the respondents/ plaintiffs strenuously contends that no jurisdictional error is committed by the trial Court and it is only to elucidate the matter in dispute the trial Court has rightly exercised during enquiry in the IA No.181 of 2015 and if the said A & B schedule properties and the property covered by sale deed dated 20.08.1965 are localized without mentioning the persons who are in possession, no prejudice would cause to the defendants. In fact, a specific direction was issued by the trial Court to the learned advocate commissioner to that effect and also the advocate commissioner was instructed to take the assistance of Surveyor attached to Survey and Land Records and there is no absolute bar in appointing the advocate commissioner in a suit for perpetual injunction, be it at the stage of enquiry in temporary injunction petition or during the trial and relied on the principles laid in the following decisions:

i) Donadulu Uma Devi v. Girika Katamaiah @ Basaiah and others (2013 (1) ALT 548);

ii) Shaik Zareena Kasam v. Patan Sadab Khan and others (2011 (4) ALT 541);

iii) Mohammed Jaffer Abdul Qadeer Qureshi v. Aziz-ur-Rehman Qureshi and others (2016 (3) ALD 38);

iv) Nambada Varaha Narasimhulu v. Karanam Dalamma and others (2014 (6) ALT 94); and

v) Velaga Narayana and others v. Bommakanti Srinvias and others (2014 (4) ALT 152).

7. I have given my thoughtful consideration to the principles laid in the above decisions. There cannot be any dispute as to the principles laid in the above decisions. The law is well settled that there is no absolute bar for appointment of advocate commissioner in a suit for injunction simplicitor either in the course of trial or during enquiry in a temporary injunction petition.

8. In the present case, the Court below after hearing the learned counsel for both the parties, after going through the material available on record, appointed advocate commissioner inter alia for the purpose of elucidating the matter in dispute stating that the defendants are also claiming the suit schedule properties, and it is just and essential to localize the plaint A & B schedule properties and the property covered by the registered sale deed dated 20.08.1965 with the help of Surveyor attached to Survey and Land Records with a specific direction not to mention as to who is in possession which part of the property. Thus, the Advocate Commissioner is not appointed for the purpose of gathering evidence in support of any one of the parties, the purpose of appointing advocate commissioner is only to assist the Court in elucidating the matter in dispute.

9. Though the learned counsel for the defendants vehemently contends that the plaintiffs are in the habit of filing speculative litigations, similar suits are filed before other courts and in all those suits, temporary injunction petitions filed and they were dismissed is not an issue to be considered in the present application, as the trial Court during enquiry in IA No.181 of 2015 felt essential to appoint advocate commissioner to elucidate the matter in dispute, considered the request of the petitioners in IA No.740 of 2015 and appointed the advocate commissioner. The trial Court by virtue of the powers vested under Order- 26 Rule-9 CPC appointed the advocate Commissioner to visit the suit schedule property to localize the schedule A & B properties and also to localize the property covered by the registered sale deed dated 20.08.1965 with the assistance of qualified surveyor and also to note down the physical features of the property with a caution that not to mention the details of the persons who are in possession.

10. Thus, viewed from any angle, there is no absolute bar on appointment of commissioner in a suit for perpetual injunction either as per the provisions of Section 75 or under Order-26 Rule 9 CPC or as per the judgments relied by the learned counsel for the petitioners/defendants. The respondents/plaintiffs have filed the present application for appointment of advocate commissioner only to note down the physical features and localization of schedule A & B properties and the property covered by sale deed dated 20.08.1965, the Court below has recorded valid reasons for appointment of advocate commissioner during enquiry in IA No.181 of 2015.

11. Therefore, in my considered opinion, the trial Court is perfectly justified in appointi

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ng the advocate commissioner and the said order is in accordance with the settled principles of law and does not suffer from any fundamental infirmity or jurisdictional error which warrants interference by this Court under Article 227 of the Constitution of India. 12. On the other hand, in such facts and circumstances of the case, the appointment of advocate commissioner during enquiry in IA No.181 of 2015 will undoubtedly and certainly assist the Court below in arriving at just and correct conclusion. 13. In the result, the Civil Revision Petition is dismissed confirming the order dated 13.11.2015 in IA No.740 of 2015 in IA No.181 of 2015 in OS No.303 of 2015 on the file of the learned II Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar. However, in the circumstances of the case, there shall be no order as to costs. As a sequel, interlocutory applications, if any pending in this revision petition, shall stand closed.
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