Andhra HC (Pre-Telangana)
J.P. Subbamma vs N. Ravi Kumar Reddy And Anr. on 27 August, 2001
Equivalent citations: 2001(6)ALT101, 2002 A I H C 190, (2002) 1 CIVILCOURTC 159, (2002) 1 RENCR 224, (2002) 1 RENTLR 595, (2002) 1 ICC 1065, (2001) 6 ANDH LT 101, (2001) 2 ANDHWR 319
ORDER R. Ramanujam, J.
1. This Civil Revision Petition is against the order of the Principal Junior Civil Judge, Anantapur allowing I.A.No.941 of 2000 - filed under Order 26, Rule 9 CPC - in O.S.No.291 of 2000.
2. That suit was filed by the petitioner-plaintiff for permanent injunction restraining the respondent-defendants from interfering with his possession of the suit schedule property. It appears that a temporary injunction was granted, pending the suit, restraining the respondent-defendants from interfering with the possession of the petitioner-plaintiff of the suit schedule property. In that suit, the respondent-defendants filed an application - I.A.No.941 of 2000 - under Order 26, Rule 9 CPC seeking appointment of a Commissioner - to note the physical features of the suit schedule property, take photographs of the same and to submit his report - alleging that taking advantage of the interim orders, the petitioner-plaintiff had encroached into their site and making constructions thereon. That application was resisted by the petitioner-plaintiff by filing a counter, wherein it was contended, inter alia, that it was premature to appoint a Commissioner as the respondent-defendants did not file counter in the injunction petition or written statement in the main suit.
3. Considering the rival contentions, the learned Principal Junior Civil Judge thought it fit to appoint an Advocate-Commissioner to visit the suit schedule property, to note down the physical features, to take the photographs of the same and to submit his report.
4. The main contention advanced on behalf of the petitioner-plaintiff by Sri O. Manohar Reddy, learned Counsel, is that the Court below has erred in appointing an Advocate-Commissioner even before filing of the written statement by the respondent-defendants. In his submission, the essential requirement under Order 26, Rule 9 CPC for appointment of a Commissioner is for elucidation of a matter in dispute and such matter in dispute cannot be noted by the Court before filing of the written statement. In support of this contention, he relied upon a decision of this Court in MALLA BHASKARA RAO AND OTHERS V. KONCHADA ANANDA RAO1).
5. Counsel for the respondent-defendants, Sri K. Somakonda Reddy, on the other hand, submits that since the petitioner-plaintiff is making new constructions taking advantage of the interim order granted in his favour, it is essential for the Court to appoint a Commissioner to note the physical features of the land in dispute and also to take the photographs of the constructions made by the petitioner-plaintiff. He further submits that even though written statement was not filed on the date of filing the application - I.A.No.941 of 2000 - (i.e., on 5-6-2000), it was filed subsequently on 11-7-2000 and on the date of the impugned order it was before the learned Judge.
6. From the aforementioned rival contentions, the question that arises for consideration is:
Whether the Court cannot appoint a Commissioner under Order 26, Rule 9 CPC till the pleadings are filed by both the parties and issues (points in dispute) are settled by the Court even though there is a need to appoint a Commissioner in the facts and circumstances of the case?
7. This question was considered by Madras High Court as well as this Court. In re P.MOOSA KUTTY2) Justice Ramaswamy considering the scope of Order 26, Rule 9 CPC held thus:
"This issue of commission can be made 'ex parte' and in fact it stands to common sense has often got to be made 'ex parte'. It will be borne in mind that this application has been filed along with the plaint and before the issue of suit summons. This application is made on account of urgency. 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. The appointment of a commissioner for local investigation in such cases would be an instance of locking the stable door after the horse had been stolen"
This decision was quoted with approval by a Division Bench of this Court consisting of P. Chandra Reddy, Offg.C.J., and Seshachalapati, J., in VEERANNA V. VENKATACHALAM3) holding thus:
"It is open to the Court to issue an ex parte commission if it deems that local investigation is requisite for the purpose of the suit".
Following the aforesaid Division Bench decision and after surveying the entire case law, a learned single Judge of this Court - Justice Jagannadha Rao (as he then was) - held thus in N.SAVITRAMMA V. B.CHANGA REDDY4):
"... ...it is clear that an Advocate-Commissioner could be appointed to make a local investigation either under Order 26, Rule 9 or even under Order 39, Rule 7(1)(a), if the circumstances of the case deem it necessary for the purpose of noting the physical features of any land or property such a Commissioner could be appointed ex parte even without notice to the opposite party. However, after appointment of the Commissioner notice has to be given by the court as well as the commissioner to the opposite party under Order 26 Rule 18 CPC".
From the aforementioned legal position, it is clear that the Court can appoint a Commissioner 'ex parte' even before the defendant appears, if the circumstances warrant such an appointment. The decision of this Court in MALLA BHASKARA RAO (1 supra), relied upon by the learned counsel for the petitioner-plaintiff, does not in any way differ from this settled position. In that case, this Court found fault with the order of the trial Court in appointing a Commissioner, at the instance of the plaintiff, to localise the suit land even before he filed a petition for amendment of the plaint. It is nowhere held therein that the Advocate-Commissioner can never be appointed before filing of the written statement. Further more, as already noted, in this case the respondent-defendants have already filed their written statement by the time the impugned order came to be made. When the respondent-defendants came up with a plea that the petitioner-plaintiff, taking advantage of the interim order granted by the trial Court, is making new constructions, the trial Court cannot simply reject the same on the ground that the written statement was not yet filed. In my considered view, the trial Court is right in appointing an Advocate-Commissioner, in the facts and circumstances of the case.
8. I, therefore, find no merit in this revision petition. It is accordingly dismissed. No costs.