Andhra HC (Pre-Telangana)
J. Satyasri Rambabu vs Smt. A. Anasuya And Anr. on 9 September, 2005
Equivalent citations: AIR2005AP529, 2005(6)ALD389, 2005(5)ALT702, AIR 2005 ANDHRA PRADESH 529, (2006) 39 ALLINDCAS 942 (AP), (2005) 6 ANDHLD 389, (2005) 5 ANDH LT 702
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. This Revision Petition is filed against the order dated 13-6-2005 in LA. No. 731 of 2005 in l.A.No. 486 of 2005 in O.S.No. 149 of 2005 on the file of the Court of Principal Junior Civil Judge at Nizamabad.
2. The brief facts are as under:
The respondents herein are the plaintiffs in the suit, which was filed seeking a decree for perpetual injunction restraining the defendant/revision petitioner from interfering with the suit schedule land. The suit schedule land was described as Ac.2.20 guntas situated in Sy. No. 226 and another extent of Ac.0.18 guntas situated in Sy. No. 227 of Sarangapur village of Nizamabad District. Along with the plaint, the plaintiffs filed I.A. No. 486 of 2005 seeking temporary injunction. It is not in dispute that initially the Court below granted ad-interim injunction. Subsequently on behalf of the defendant a memo dated 7-5-2005 was filed undertaking that he will not interfere with the property of the plaintiffs and that he would carry out his activity in the property as authorized by the Government. The said undertaking was placed on record and accordingly I.A. No. 486 of 2005 was closed. Subsequently the plaintiffs filed I.A. No. 731 of 2005 under Order XXXIX, Rule 7 of the Code of Civil Procedure praying the Court to appoint an Advocate Commissioner to note down the physical features of the suit schedule land. In the affidavit filed in support of the said application it was stated that contrary to the undertaking given by the defendant, he has been digging trenches and filling them with gravel for laying railway line in the suit schedule land. It was alleged that the defendant in violation of the orders of injunction has employed large number of workmen, and attempting to change the nature of the suit schedule land as it exists on the date of filing of the suit. In the circumstances it was pleaded that unless an Advocate Commissioner was appointed to record the physical features of the suit schedule land, the plaintiffs stand to suffer irreparable injury. Though the said application was opposed by the defendant denying the allegation that he was interfering with the suit schedule land, the Court below by order dated 13-6-2005 allowed the application and appointed an Advocate Commissioner to note down the physical features of the suit schedule land. The Advocate Commissioner was directed to inspect the suit schedule land after giving notices to both the parties and submit his report on or before 23-6-2005. The said order is under challenge in this Revision Petition.
3. I have heard the learned Counsel for both the parties and perused the material on record.
4. The learned Counsel for the petitioner vehemently contended that the trial Court has committed a grave error in appointing the Advocate Commissioner to inspect the suit schedule land which would result in collecting evidence in favour of the plaintiffs. It was also contended that since the suit is a simple suit for injunction, appointment of Advocate Commissioner to note down the physical features is not at all permissible under law.
5. On the other hand, the learned Counsel appearing for the respondents submitted that keeping in view the specific allegation that in spite of the temporary injunction granted by the Court, the defendant/respondent is attempting to alter the nature of the suit schedule land, the Court below has rightly allowed the application for appointment of Advocate Commissioner and the said order does not suffer from any infirmity and therefore does not warrant any interference by this Court.
6. It is no doubt true that the Courts are normally reluctant to appoint a Commissioner for noting physical features of the suit schedule property, particularly in a suit for injunction since the same would amount to collecting evidence in favour of one of the parties. However, there is absolutely no reason to hold that it is a hard and fast rule. Having regard to the facts and circumstances of the case and particularly whenever the Court prima facie finds that there is an attempt on the part of one of the parties to alter the physical features of the suit property and it is necessary to take note of the same, it is always open to the Court to appoint a Commissioner for inspection of such property. It is relevant to note that Order XXXIX, Rule 7 of the Code of Civil Procedure empowers the Court to make an order for detention, preservation or inspection of any property, which is the subject matter of the suit, if the Court feels that such action is necessary or expedient for the purpose of obtaining full information or evidence. In the light of the above said provision, I am unable to agree with the contention of the learned Counsel for the petitioner that the Court below has committed an error in appointing an Advocate Commissioner. As already noted above the specific plea of the plaintiffs is that in spite of the order of temporary injunction the defendant has been taking steps to alter the nature of the suit schedule land. In the circumstances, the Court below having considered the entire material on record has rightly appointed an Advocate Commissioner. The said order cannot be said to be vitiated on account of any patent error of fact or law and therefore, does not warrant interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
7. Accordingly the Civil Revision Petition is dismissed. No costs.