Nalla Wilson And Another v. Beldi Rani And Another

[ 321e I

IN THE HIGH COURT FOR THE STATE OF TELA.NGANA AT HYDERABAD

FRIDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TWENW TWO PRESENT THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI CIVIL REVISION PETITION NO: 3053 OF 2022 Petition under Article 227 of the Constitution of lndia, againsUaggrieved by the Order dated.1211212022 in 1.A.No.100078 of 2022 in O.S.No.'1033 of 2022 on the file of the Hon'ble Principal Junior Civil Judge - cum - Judicial Magistrate of First Class at Jangaon.

Between:

1. Nalla Wilson, S/o Nalla Amos, aged about 29 years, Occupation: Private Service, Resident of D.No. Nellutla Village, Lingla Ghanupur Mandal, Jangaon District.

2. Nalla'Rahul, S/o Simon @ Laxmaiah, aged about 29 years, Occu:- Private Job, Rl/o H.No.5-18i 17, Nellutla Village, Linghala Ghanapur Mandal, Jangaon District.

...REVISION PETITIONER/PETITIONERS/PLAI NTI FFS AND

1. Beldi Rani, W/o Beldi Anjaiah aged about 54 years, Occu:- Housewife, R/o H.No.2-6-123 Bus Stand Road, Jangaon Town, Jangaon District.

2. Beldi Ajay Kumar S/o Beldi Anjaiah aged about 30 years, Occu:- Private Service, Ri/o H.No.2-6-'123, Bus Stand Road Jangaon, Jangaon Town, Janagon District.

I I ...RESPONDENTS/RESPONDENTS/DEFENDANTS lA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.S. No.1033 ot 2022 on the file of the Principal Junior Civil Judge cum Judicial Magistrate of First Class at Jangaon. Counsel for the Petitioners: SRI B. SHANKER Counsel forthe Respondent No.2: SRI G. ANANDAM The Court made the following: ORDER

I THB HONOURABLE SN{T. JUSTICE P. MADHAVI DEVI CIVTL RE\/ISIO N PlrTIl'ION NO.3053 OF 2022

ORDER

This Revision Petition is frted by the petitioners who are the plaintiffs in O.S.No.l033 ol 20)2 challenging the order of the Principal Junior Civil Judge-cum-Judic ia I Magistrate of First Class at Jangaon dt.12.12.2022 in t.A.No.t07u of 2022 in I.A.No.866 0f 2022 ln I.A.No.616 of 2022 in O.S.No. t033 of 2022.

I 2.

The learned counsel lor the petitioners, Sri B. Shanker, submitted that the suit has been filed tbr permanent injunction against the respondents/detbndants and ad interim injunction was granted in favour of the petitioners, vide orders in I.A.No.616 of 2022. The respondents/deflendants have fllcd a stay vacate petition in LA.No.866 of 2022. The petitioners fited I.A.No.l078 of 2022 in I.A.No.866 of 2022 for appointment ot'an Advocatc Commissioner to veriS the existence of a 'Four Wheel Garage shed' in the suit 'A' schedule property anC submit a repofi thereon. The plaintiffs were claiming that since the purchase of the propeny, their l'arher had established the Garage by name'Four Wheel (Jarage' antl u'as in possession of the same. The said

Application has been opposed by the respondents and after considering the arguments olboth the parties, the Civil Court has dismissed the said Application. Against the said order, the present CRP is filed. t 3.

The respondents have filed a caveat petition and therefore, the leamed counsel representing the respondents has also been heard at the admission stage itself.

4.

While the learned counsel for the petitioners relied upon the averments made in the afTidavit filed in support of the petition, he also placed reliance upon the following two decisions: (l) Phoolchand Asra Vs. Nagar Palika Nigam Raipur and othersl.

(2) Bommireddy Tirupathi Reddy Vs. Dokka Kondamma a nd others2.

He submitted that where there is a dispute of fact and the same can be elucidated by examination by a Commission, then appointment ol an Advocate Commissioner is j ustifi ed.

I yy1;1 psrition (227) No.82l of20l9 of(he High Court ofChhattisgarh, Bilaspur dt.09.09.2022. 2 Civil Revisioa Petition No.9'14 of20l8 ofthe High Court ofJudicatue at Hyderabad for the State of Telangana and the State of Andhra Pradesh dt 06 07'20 18-

., 5.

Leamed counsel for the respondents, Sri G. Anandam, on the other hand submitted that the suit is still at trial stage and the suit is for injunction and therefore appointment of an Advocate Commissioner at this stage is not warranted and that it is filed only to protract the stay vacate petition filed by the respondents. In support of his above contention, he placed reliance upon the judgment of this Court in the case of Koduru Sesha Reddy Vs. Gottigundala Venkata Rami Reddv and others .

6.

Having regard to the rival contentions and the material on record, this Court frnds that the issue in this CRP is only with regard to necessity of appointing an Advocate Commissioner at the stage of considering the stay vacate petition filed by the respondents. The petitionerVplaintiffs have already been granted ad interim injunction. The petitioners are claiming possession over the property and in proofof the same, it is subrnitted that thcir father had purchased the property and constructed a shcd by name 'Four Wheel Garage' and he was in possession of the same till his dcath and thereafter, the plaintiffs are in possession of the same. Ther hare requested lor appointment of an Advocate Commissioner onlv ro vcrily whether there is a Four Wheel ' zooo 1r; aLo :zz

Garage in the suit schedule property. This camot be said to be dilatory tactics. If there is a need for a factual verification, this Court is of the opinion that there cannot be any reason for not appointing an Advocate Commissioner to veri$ the same. The judgments relied upon by the learned counsel for the petitioners support this stance of this Court. For the purpose of ready reference, the relevant paragraphs of the said judgments relied upon by the petitioners are extracted hereunder: In the case of Phoolchand Asra Vs. Nagar Palika Nigam Raipur and others (l supra), the Hon'ble High Court of Chhasttisgarh, Bilaspur has held as follows:

I0. Under Order 26 Rule 9 of C.P.C., the court itself can exercise the power or in order to elucidate the dispuled facl, and on the Ercstion o.f encroachmcnt und location/identfication of land on an application filed by the parties. More so u,hen there is no agreed nap between the partics, the 1tlunicipal Corporation or Municipal Council or Pancha)'al con enler into dispute and decide the same by placing correct position of the partics. A plain reading of the provision says thot the power can be exercised at any stage. Basic purpose to exercise pover under Order 26 Rule 9 of C.P.C. is to separate the wheal from chalf and in cases u,here it is necesiary to elucidate the relevant -facts. the Court can exercise its poy)ers. It must be rentembered tfu the proccdural law is made to advance the cause of jttstice antl nol lo slranqulate thc litigant on hyper technical grounds. ln Order 26 Rule 9 oI C.P.C. the word used is - "elucidate" and its meaning as per l4/ebslers Dictionary is "to make light or clear, to

explaiq to remove obscurity .from and render intelligible, to illustrate." According to Chambars Dictionary, "elucidate" means to make lucid or clear or to throtr light upon, lo illuslrale, making clear, explanatory. "

14. Nou'coming to the.focts of the present case, there is dispute regardingflow of drainage woter. According to lhe petitioner/pldintiff, there is an encroachmenl over the drainage and which causes obstruction in the smooth /lowing of drainage water, whereas respondent No.3 has stated thal lhere is no encroachmenl and due to garbage/polythene, papers, vaste materials, drainage is blocked. In view of the disputed facts which in my opinion cannol be ascerlained without local inspection or \lithout making local investigation and further considering the judgmenrs passed by the vorious High Courts and the Hon'ble Supreme Court. lhe learned trial Court ought to have allowed lhe application moved hy rhe plaintiff/petitioner under Order 26 Rule 9 of C P.C."

In the casc of Bommircddy Tirupathi Reddy Vs. Dokka Kondamma and others (2 supra), the Hon'ble High Court of Judicature at Hyderabad for the State ofTelangana and the State olAndhra Pradesh has held as under:

"6. In lhe considered ,''iev of this Courl, in the circumslunces stated by the defendanl, the oppt)intment of a Commissioner would subserye the ends of.iustict. us. according to the de.lbndant, the entire exlenl of A.3.00 cents ol lund o/ the deJendant, out of which Ac.0.50 cents, which is incluleLl in rhe plaint schedule, is fenced with closed planted teakwood plantution as a hedge and tirut it is forming a boundary or fence and thut tha lemon trees in the enlire garden,

which are in the entire Ac.3.00 cents of land, including the Ac.0.50 cents, which the defendant is claiming as his, are of the satne age and that the physical features would establish the pleaded defence, which the defendant intends to establish to succeed in the suit. Be it noted that there is no hord and fast rule that in no suit for perpetual injunction, a commission shall be issued though it is true that a commission cannol be issued for ascertaining as to who among the parties is in possession, as such a function being a judicial function cannol be delegated. lt is now well settled that appointment of a commissioner lor noting down the physical features cannot be termed as collection of evidence. Further, the evidence, which the commksioner galhers by noting down the physical features of the properties, cannol olhen|ise be procured.

If lhe Commissioner appointed makes a local inspeclion ond notes down the physical features of the properties and files a report, the said report ard the eyidence he may give, based on his reporl, if he is examined before lhe trial Court, would perhaps enable lhe trial Court to better apprecidte the other evidence that mq,hc let in by the parties during the course of triol. In lhat viev'ofthe nolter andfor the above stated reasons, this Court finds that the defenclant made out valid and sfficient grounds for issuance of a commission and that, therefore, the order impugned is liable to be sel uside being unsustainable. " 7.

In the decision relied upon by the leamed counsel for the respondents in the case of Koduru Sesha Reddy Vs. Gottigundala Venkata Rami Reddy and others (3 supra), it was held that in suits for perpetual injunction, appointment of a Cornmissioner to note down the physical features cannot precede the recording of evidence and the

parties have to adduce their evidence in support of their respective contentions as to possession and thereafter, the Court would be justified to appoint Commissioner, only if it feels that the evidence on record is not sufficient for recording a finding, for the purpose of granting or refusing the relief of injunction. In the said ci$e, the trial is yet to commence and the Court has held that appointment of Advocate Commissioner at that stage was not justified. In the case before this Court also, the trial is yet to commence though the respondents have fited their written statement denying the existence of the Four Wheel Garage.

8.

The judgment relied upon by the leamed counsel lor the petitioners in the case of Bommireddy Tirupathi Reddy Vs. Dokka I I Kondamma and others (2 supra) and also the decision relied upon by the learned counsel for the respondents in the case ol Koduru Sesha Reddy Vs. Gottigundala Venkata Rami Reddy and others (3 supra) are both relating to the Hon'ble High Court of Andhra Pradesh and the decision in the case of Bommircddy Tirupathi Reddy Vs. Dokka Kondamma and others (2 supra) being the latest judgment and being decided in similar circumstances has to be followed.

9.

In view of the same, the order dr.12.12.2022 in I.A.No.l078 of 2022in I.A.No.866 of 2022 in I.A.No.6l6 of 2022 in O.S. No.l033 of 2022 on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Jangaon is set aside and the Civil Court is directed to appoint an Advocate Commissioner from amongst the Advocates available and issue a warrant to the Commissioner with necessary directions and by fixing a date for submission ofthe report.

10. The Civil Revision Petition is accordingly allowed. No order as to costs.

11. Pending miscellaneous petitions, if any, in this CRP shall stand closed.

SD/.NAYANI CHANDRA SEKHAR RAO ASSISTANT REGISTRAR //TRUE COPY/I \ -..!... '\"','

SECTION OFFICER To,

1. The Principal Junior Civil Judge - cum - Judicial Magistrate of First Class at JANGAON.

2. One CC to SRI B. SHANKER, Advocate [OPUC]

3. One CC to SRI G. ANANDAM, Advocate IOPUC]

4. Two CD Copies BB 6s(

HIGH COURT DATED: 3011212022 t.

e-Y \t:

4.,a to s t,,j

ORDER

c'

CRP.No.3053 of 2022 r.) t.l '* ALLOWING THE CIVIL REVISION PETITION WITHOUT COSTS 6S"k