Judgment · High Court

The 1st respondent filed O.S.No.78 of 2003 in the Court of Additional Senior Civil Judge, (Fast Track Court), at Nandyal, against the petitioner and respondents 2 and 3, for the relief of perpetual injunction, in respect of the suit schedule property. The trial of the suit is in progress. The petitioner and respondents 2 and 3 filed I.A.No.27 of 2008 under Rule 9 of Order 26 C.P.C., with a prayer to appoint an Advocate- Commissioner to visit the suit locality, note down the physical features pertaining to the thrashing ground, house properties, lanes etc., and to submit a report. The petitioner referred to certain orders filed in a different suit, being O.S.No.83 of 1991, and ultimately, prayed for appointment of Commissioner. The 1st respondent opposed the application. Through its order, dated 04.09.2008, the trial Court dismissed the I.A. Hence, this revision.

Heard Sri M.Balasubrahmanyam, learned counsel for the petitioner. The notice was not served upon the 1st respondent. The 1st respondent is said to have died on 15.10.2008 and C.R.P.M.P.No.191 of 2008 is filed with a prayer to add the proposed respondents 4 and 5 as his legal representatives. The notice was ordered by this Court and the proposed respondents are not served as yet. However, having regard to the nature of the order, which this Court proposes, it is felt that it not necessary to wait any further and the matter pertaining to bringing of legal representatives can be left to be dealt with by the trial Court. Hardly there exists any occasion for appointment of a Commissioner in a suit for perpetual injunction, even at the instance of the plaintiff. The reason is that the question as to whether the plaintiff was in possession of the suit schedule property and whether there was any interference by the defendant has to be established by the plaintiff through oral and documentary evidence. Appointment of Commissioner in suits of that nature, amounts to a step to gather evidence. On his part, the defendant has to do nothing more than justifying his interference, if he has got any right vis-à-vis the property or to deny such interference. Beyond that, he is not required to take any further steps. Disputes of title are to be resolved in different set of proceedings. The application filed by the petitioner in a way travels beyond the scope of the suit. The purpose for which the Commissioner is sought to be appointed is to note down the physical features of several items of properties outside the schedule of the suit. Such an exercise is totally impermissible and the trial Court is justified in dismissing the I.A. Hence, the C.R.P. is dismissed. There shall be no order as costs. Dt.25.03.2011. GJ _____________________ L. NARASIMHA REDDY, J.