The High Court · 2024

THE TIONOURABLE SMT. JUSTICE RENUKA YARA CIVIL REVISION PETITION No.864 of 2024 ORDER: Heard Sri Basanth Kumar Soni, leamed counsel representing Sri Aadesh Varma, learned counsel for the petitioner and Sri Ashish Kale, learned counsel for respondent No.4. Perused the entire record' Z. The present revision is preferred aggrieved by the dismissal order dated I i.01 .2024 passed in I.A.No .1174 of 2022 in O.S.No.596 of 2010 on the file of the xxv Additional chief Judge, city civil court at Hyderabad ('trial Court'), wherein application was filed to appoint Advocate Commissioner for noting down the physical features of the suit schedule property and the nature of construction carried out by the respondents in violation of the interim orders existing in favour of the revision petitioner herein. B rief fa cts/Bac kground f,acts :

3. The brief facts of the case are that the revision petitioner herein filed a suit for declaration and consequential injunction and specific performance of agreement of sale dated lg.O4.2OO8 and the said suit is currently coming for recording of evidence and at that stage, the revision petitioner has filed I.A. under revision and other I.As. seeking various reliet-s' The I'A' under ,. 't j 1 : i i l t RY,J cFJ 864 2024 revision has been filed for appointment of Advocate Commissioner under Section 75 of the CPC for recording physical features of the suit schedule property. tlhe case of the revision petitioner is that there is an interirn order granted by the trial Clourt i.e., to maintain status quo restraining the respondents from creating any third party charge by way of alienation or execution of lease deed or induction of tenants etc., whereas, the respondents are adding or altering the nature of the construction and that the revision petitioner came to know that respondent No.5 is creating third party charge on the suit schedule property by carrying out certain construction works.

4. Whiie so, the case of the respondents is that there is no interim order in force ar.d theretbre, there is no cause of action for appointment of the Advocate Commissioner to note down the physicat features of the suit schedule pr:operty. Fufl.her, it is the case of the respondents that since there is no statu,s quo order in force, there is no case for contempt of Court on account of violation of the order of the Court and therefore, the petition to appoint an Advocate Commissioner to collect evidence with respect to violation of the Couft's status quo order is ill-conceived.

5. Upon considering the case of the revision petitioner and the respondents, the trial Court held that I.A.No.25 of 2018, wherein status quo /2ron -f i,1 RY.J cRP 864 2024 was granted was closed and without reopening the said petition' the revision petitioner herein has no case for filing the petition under revision to contend violation of the order dated 08.10.2010' The trial Court funher held that there are no procedural irregularities and therefore, the revision petitioner cannot be permitted to seek appointment of the Advocate Commissioner to record physical features of the suit schedule property as the same amounts to collection of evidence. Therefore, the petition has been dismissed leading to filing of the present civil revision petition' Grounds of revision: [n grounds of revision, it is pleaded that the revision petitioner made 6. effbrts ro proceed with trial since 2016, but could not proceed with the same due to the reasons beyond his control' The trial Court recorded incorrecr starus about the interim order in docket order dated 22'10:0)l in I.A.No.25 of 2018 and the same has added to the ptight of the revision petitioner. It is urged that the cenified copy issued with respect to the order dared 22.10.20?l is contrary to the handwritten docket order and the same is misleading. The said docket order requires clarification' but the trial Court did not provide such clarif,tcation, in spite of the petitioner's eftbrts' The respondent took advantage of the ambiguous docket order dated 22.10.2021 to the prejudice of the revision petitioner' Further' the revision 3 RY,J cRP 864 2024 petitioner oleaded that the trial Court unreasonably relied upon the version of the resrrondents that the I.A. under revision is not maintainable until I.A.No.25 of 2018 is reopened, which is closed without any valid reasons. Lastly, it is pleaded that the trial Court adopted strange logic while passing the impugned order with an observation that the respondents were at liberty to violate the impugned order. Contentions of the revision petitioner:

7. During the arguments, learned counsel for the revision petitioner contended that the impugned order was passed with an erroneous observation that there is no interim order in force while there was status quo from the year 2010, which was made absolute. On account of closing of the I.A. vide docket order dated 22.10.2021, the respondents herein have taken liberty to make constructions chan-eing the physical features of the suit schedule property and also inducted third parties and thereby, created charge in violation of the status quo order. More particularly, the leamed counsel fcrr the revision petitioner vehemently argued that there is order of status quo in favour of the revision petitioner preventing the respondents from charrging the physical fbatures of the suit schedule property and creating third party charge. Further, it is argued that, construction activity in the suit schedule property, since it is in violation of ) 4 f') RY,J cP.P 864 2024 the status quo amovnts to contempt and therefore, he would move separate application seeking contempt of the Court against the respondents' It is fuither argued by the learned counsel for the revision petitioner 8. that the creation of charge is also violation of the order of status quo and therefore, the respondents have committed contempt of Court and it is necessary to appoint an Advocate Commissioner to note down the physical features and to collect information about the lease holders' who are in possession in respective portions of the suit schedule property' Learned counsel for the revision petitioner referred to the counter filed by the respondents alleging that there is an admission about violation of the Court order as respondents have admitted that certain construction activities were carried out though it is termed as repairs and maintenance' Further' photographs are filed along with the synopsis to shsw the construction activities being carried out in the suit schedule property. The said photographs also show an entity called 'Maa Manasa Devi Mini Transport' being in occupation followed by one 'Sri Raja Rajeshwari Transport'' According to the revision petitioner, the said constnrction is taken up for inducting more tenants and thereby the respondents are eaming rents illegally in violation of the status quo order and in case the same is proven' the rents so received have to be deposited before the Court' It is finally 5 RY,J cRP_864 2024 argued that no prejudice would be caused to the respondents in case the Advocate (lommissioner is appointed. Contentions of respondent No.4l

9. Learned counsel for respondent No.4 argued that irrespective of the fact that fte docket order dated 22.10.2021 is eroneous about non- existence rf the interim order, the fact remains that the said petition is closed. \[hen the said petition is closed and the status quo order is no longer in fbrce there is no ground for the revision petitioner to allege the violation of the said status quo order and therefore, there is no cause of action for appointment of the Advocate Commissioner to note down the physical features as well as to determine the persons in occupation of the suit schedrrle property. [t is argued that the intention of the revision petitioner j.s to collect the evidence and therefore, the same cannot be permitted. It is also argued that no case for contempt can be maintainable without aclducing evidence about the violation of the interim order. Currently, the suit is at the stage of recording of evidence of P.W.l and in the absence: of the evidence on record, the revision petitioner cannot make out any case against the respondents for contempt of Court. It is tastly argued tha! the order passed by the trial Court is based on the fine reasoning and therefore, there are no grounds to interfere with the same. 6 I :._ ; t : ? I "r RY,J cRP 864 2024 Findines of the Court:-

10. A perusal of the record shows that the trial Court in I.A.No .25 of 2018 on22.10.2021 has passed docket order stating that 'main suit has ripe for trial and there is no order in this petition. Without prejudice to the rights and contentions of both sides, this petition is closed'.

11. According to the revision petitioner, the aforementioned order has caused serious prejudice to him as there was status quo in force from

08.10.2010 and still continued to be in force as the cryptic order is passed without any reason. The respondents by taking advantage of the closing of the petition in I.A.No.25 of 2018 are carrying out construction in violation of the said status quo order. Thereby, there is violation of the interim order passed by the trial Court giving rise to a case of contempt of Court. When the prayer in LA.No.25 of 2018 is perused to ascertainwhether status quo order is passed to restrain the respondents from carrying out changes to the physical features of the suit schedule property as well as restaining them from creating charge, the petition contains prayer to restrain respondents from creating third party charge by way of creating lease deeds, alienation or by way of inducting tenants. [t shows that there is no order preventing the respondents from carrying out changes to the physical features of the suit schedule property. To the said extent if any changes are carried out to \ 7 l RY,J cRP 864 2024 the suit schedule property there is no violation of Court order. Whereas, according lo the revision petitioner the very pu{pose of making changes to the physiciil features of the suit schedule property is to induct third parties as tenants, therefore, no construction activity should be permitted in the suit schedule properly.

12. In support of his case, learned counsel for the revision petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Maharwall Khewaji Trust v. Baldev Dassr, to contend that the Civil Court can exercise its wide power to prevent the parties from changing the physical fe,atures and induction of third parties.

13. To c,onsider the merits of the case of the revision petitioner, when the applicatiort under revision was pen$ed, the prayer is as follows: "For the reasons stated in the accompanying affidavit the petiticner/plaintiff prays that this Hon'ble Court ma1' be pleased to appoirrt an Advocate Commissioner for recording the ph!'sical features of the suit schedule propeny and to submit a report to this Hon'ble Court as directed by this Hon'ble Court in the circumstances of the case on hand in the interest ofjustice. IN Alternate this [{on'ble Court may be pleased to pass such other order(s) as deem fit in cireunrstances ofthe case on hand in interest ofjustice."

14. The abovementioned prayer shows that the purpose of appointment of the Adyocate Commissioner is to record physical f'eatures of the suit 'ltR zoos sc r.o4 8 * * *, H:,t F RY,J cRP 864 2024 schedule property. As already discussed supra, there was no status quo order passed by the trial Court to prevent any kind of construction or change of physical features of the suit schedule properly. The only relief given was to grant status quo with respect to creation of third prty charge by way of alienation or creation of lease deed or inducting of tenants' Currently, the petition under revision was filed for the purpose of noting down physical features alleging violation of court order.

15. During the arguments, when it was brought to the notice of the learned counsel for the revision petitioner that there is no violation of the Court order or contempt of Court with respect of changing physical features of the suit schedule property, the learned counsel for the revision petitioner sought appointment of the Advocate Commissioner for the purpose of ascertaining the details of the persons' who are in occupation as tenants and rents collected by the respondents. When it is pointed out to the learned counsel for the revision petitioner that there is no prayer in the I.A. under revision for appointment of Advocate Commissioner to collect the evidence with respect to tenants, it is argued that no prejudice will be caused to the respondents in case Advocate Commissioner is appointed for the said purPose. \ 9 i : _t ( I t i i i I Lt i : RY,J cF.P 864 2024

16. In this context, the legal ratio laid down by this Court in Rachakonda Mallamma v. Rachakonda Ramesh 2 , would preclude appointm,:nt of an Advocate Commissioner to collect information as to physical features and persons in possession of the subject property. Relevant portion is extracted and produced below: "8. In the decisions relied upon by the learned counsel for the respondent, the Hon'ble Madras High Court has considered similar situation and has held that a Court may appoint a Commissioner in any r;uit where it deems a local investigation to be requisite for the purpose of elucidating any matter in dispute and that the Advocate Commissioner cannot be appointed to gather evidence as to who is in possession ofthe suit schedule land. [t was further obsened that the contention that no prejudice will be caused to the other side by appointment of an Advocate Commissioner, is not at all a relevant factor for appointment of an Advocate Commissioner. Further, in the oase of Raviv.Y. Shanmugan (4 supra), the Madras High Court has held that in a suit for bare injunction. appointment of an Advrrcate Commissioner cannot be ordered either to prove the poss'ossion or to collect the evidence

9. [n the case before this Court also, the plaintiff as well as the defendants are claiming the same property to be under their poss,:ssion and while the plaintiff is relying upon a registered sale deed, the defendants are relying upon an unregistered simple sale deed. The defendants have also alleged that the registered sale deed is sham and bogus. In such circumstances, the veracity of the registered document and also the boundaries mentioned therein would have to be proved by the defendants by leading evidence. The presumption to be drawn in the case of a registered document is ttat it is a valid and genuine document. Any assertion or allegation to the contrary would have to be proved and the onus of proving the same would be on the person rnaking such an '2023 SCc orrline Ts 706 10 allegation. RY,J cP.P 864 2024 ),

17. Learned counsel for the revision petitioner referred to letter dated

12.12.2023 issued by Deputy Commissioner (ST), STU-4, Abids Division, Hyderabad and enclosed documents obtained by him under RTI Act,2005' to show that new tenants were inducted to the suit schedule property. Assuming for a moment that the respondents herein have violated the Court order by inducting tenants, to prove the same the revision petitioner has to lead evidence of the person who authored the said papers' The revision petitioner has to lead evidence before the trial Court to discharge his burden of proof, but cannot collect evidence through Court by getting an Advocate Commissioner appointed'

18. Learned counsel for the revision petitioner having perused the prayer of the I.A. under revision, which does not seek appointment of Advocate Commissioner for the purpose of collecting the information about the tenants and rents collected prayed this Court to mould the prayer and grant such a relief by foregoing the prayer for recording the physical features of the suit schedule property on the basis of the judgment in Maharwal Khewaji Trust (cited supra). Said case relates to a petition f,rled under order xxxx Rules I and 2 of cPc, but not a petition filed under Section LL RY,J cRP 864 2024 75 ofCPC, hence said judgment does not come to the aid of the revision petitioner.

19. Wittr due respect to the argument of the learned counsel for the revision pe:titioner and his expectation for justice, this Coun would like to place on record that this is a Civil Revision Petition arising from the impugned order dated 11.01 .2024 passed by the trial Court in t.A.No.ll74 of 2022. As a Revision Court, this Court has limited power and cannot exercise lilrcrty to grant reliefs that are not sought by the revision petitioner in the [.A. under revision. This Court has limited powers to consider the legality of'the impugned order, but cannot grant the relief which is not scught for.

20. In view of the forgoing discussion, this Civil Revision Petition lacks rnerits and the same is liable to be dismissed.

21. [n rl're result, the Civil Revision Petition is dismissed by' confirming the order dated 11.01 .2024 of the trial Court in I.A.No.ll74 of 2022 in O.S.No.596 of 2010. There shalt be no order as to costs. Miscellaneous applicatiottt,iflryrl --* //TRUE COPYII To, "N

1. The X)(V Addl. Chief Judge, CCC' Hyderabad 2. One CC to SRl. Aadesh Varma, Advocate IOPUC] 3. One CC to SRl.Ashish Kale, Advocate [OPUC] 4. Two CD CoPies SD/.A. JAVASREE ANT REG ECTION OFFICER records if any) ,/ t (A {a,m d )r HIGH COURT DATED:2510812025 ORDER cRP.No.g64 c,f 2024 : : t:i 'l CIVIL REVISION PETITON IS DISMISSED L, !,n