M/S. India Media Services Pvt. Ltd., v. Kishtamma
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO C.R.P. No.5467 OF 2016 ORDER:
The plaintiff maintained the suit against four defendants for the relief of permanent prohibitory injunction alleging that the defendants are trying to interfere thereby, restraining their interference with plaint schedule property, pending disposal of the suit under contest i.e., O.S. No.1281 of 2012 on the file of the V Junior Civil Judge-cum (FAC) X Junior Civil Judge, City Civil Court, Hyderabad. He also filed I.A. No.285 of 2012 under Order XXVI Rule 9 C.P.C for appointment of advocate commissioner to make local inspection of the plaint schedule property and the same was ended in dismissal on 31.08.2015, impugning the same filed the present revision. 2) It is the contention of the learned counsel for the revision petitioner that the lower Court gravely erred in dismissing the same by misunderstanding the contents of the affidavit seeking appointment of commissioner and thereby prayed to allow the revision by setting aside the impugned order.
3) Heard Sri Golla Suryanarayana, learned counsel for revision petitioner before admission and before notice to respondent. Perused the affidavit and the contentions in the grounds of revision. 4) The prayer in the application for appointment of advocate commissioner under Order XXVI Rule 9 C.P.C is to make local inspection of the schedule property and to submit report. What type of investigation to be done is not even mentioned and it is not even stated of any physical features to be noted or demarcation to be done. Thereby the lower Court is right in saying the prayer is with no clarity and with that ambiguous prayer shows to serve no purpose, commissioner can not be appointed.
Dr SSRB, J CRP_5467_2016 5) The impugned order of the lower Court speaks further that there is not only clarity in the petition filed by the petitioner/ plaintiff as to why he filed the petition for appointment of advocate commissioner but also suppression of the facts with regard to filing of W.P. No.2666 of 1993, wherein the advocate commissioner was appointed and thereby, there are no grounds to appoint advocate commissioner for local inspection of plaint schedule property, leave about the purpose for which the present petition is filed is served in W.P. No.2666 of 1993. 6) However, once there is no prayer for what purpose a commissioner can be appointed, there is nothing to interfere with the impugned order in the revision, but for to set-aside the observation of the so-called suppression of the W.P. No.2666 of 1993 order appointing advocate commissioner, for mere non-disclosure does not tantamount to suppression of material facts.
7) Having regard to the above, the petitioner is given liberty to file a fresh application seeking appointment of advocate commissioner specifying the purpose in filing the petition, in such an event and also as to in addition to the purpose for which the commissioner appointed by order in the writ petition present need arises and therefrom, same shall be decided on its own merits uninfluenced by the observations in the impugned order of the lower Court or by the so-called appointment of advocate commissioner earlier in the W.P. No.2666 of 1993, once further necessity arises, if any.
8) Accordingly and in the result, the revision is disposed of. No order as to costs.
Dr SSRB, J CRP_5467_2016 9) Consequently, Miscellaneous petitions, if any pending in this Revision, shall stand closed.
_______________________________ Dr. B. SIVA SANKARA RAO, J Dt.06.01.2017 knl