The High Court · 2025

Heard Sri G.Anandam, learned counsel :r the revision petitioner. None appears for the respondents, thcr gh notices u,ere sen,ed on the respondent and also on the counsel i ppeerring for the respondents before the trial Court.

2. This Civil Revision Petition is hled un,i :r Article 227 of the Constitution of lndia, against the Order I.-A. ,tro.4 of 20 16 in I.A.No.127 of 2015 in O.S.No.68 of 2015 on the fi: of Junior Civil Judge, at Narsampet, Warangal District, da r :d 19.O2.20L6. wherein, the petitioner herein, who is defendant in the suit bearing O.S.NO.68 of 2015, filed I.A.No.4 of 2016 in l.trNo. l2Z of 2Ot5 under Order 26 Rule 9 of CPC seeking to appr nt an Advocate 2 Commissioner. For the sake of convenience, the parties herein are referred to as petitioner / plaintiff and the respondent/ defendant as before the trial Court.

3. The petitioner/ plaintiff filed suit against the respondent seeking permalent injunction against the respondent in respect of the land admeasuring 1-13 guntas in Sy.No.25-/7 of Duggondi Village.

4. Pending suit, the petitioner/ plaintiff fi1ed the I.A. seeking appointment of Advocate Commissioner to locate the suit land and the land claimed by the respondent/defendant admeasuring Ac.0-36 guntas to fix the boundaries with the help of Surveyor of land Records. .5. The said petition was contested by respondent/defendant who is revision petitioner herein contended that the said petition was frled only to drag the I.A. and further contended that the plaintiff therein who is petitioner/ plaintiff has filed the suit against the respondent and the petitioner/ plaintiff is no way concerned with the Suit Schedule Property, but he filed a false suit.

6. He also contended that the plaintiff is in possession of the Suit Schedule Property but no document has been filed to shorv 'C 3 that the plaintiff is in possession of Suit Schedul, Property as on the date of hling of suit of the petition€ r/plaintiff. The petitioner/ plaintiff is not in possession of th ( suit schedule property and is not certain about boundaries, € <tents and also adjacent property and now cannot be entrusted to the Advocate Commissioner by this Court and the same is imJ,, rmissible under law. It is averred that no Advocate Commissioner c en be appointed for question of evidence a-nd he further relied o: L the Judgment reported in 2015 (2) ALD 2O7 and hnally corr' ended that the petitioner has to collect and place his evidence pur', ly basing on his own efforts and cannot take the help of this (l rurt and which amounts to collection of evidence.

7. The said application was heard and tlt : learned Judge allorved the application appointing the Advocate rl :mmissioner on the ground that such appointment is for the purg,r se of identity of property and will be helpful to both the partie s : rd no prejudice would be caused to the respondent even thoug t if an Advocate Commissioner was appointed and no harm or loss ' vill be caused to either of the parties due to such exercise. Though ;ometime would be consumed by the Advocate Commissioner fo i' completing the task. 4

8. Being aggrieved by the same, the present rer.ision is f-rled contending that the learned judge ought not to have appointed the Advocate Commissioner and allowed the application and further averred that in the suit for simple injunction, no Advocate Ccommissioner carr be appointed. The respondent is burdened entirely to identify the plaint schedule property and the boundaries as mentioned in the plaint schedule, but the same is not open as the allou,ing of application is not vested in data and the finding that no prejudice could be caused to the revision petitioner even on appointmcnt of Advocate Commissioner as sought for by the respondent is erroneous. The revision petitioner prayed that the revision be allowed ald the said petition be dismissed. . 9. Having heard the counsel for the revision petitioner and perused the entire material on record, it is the contention of the revision petitioner that the petitioner has also filed similar suit against the plaintiff seeking the same relief of injunction and the contention of the petitioner before the trial Court is that he is in possession of the suit schedule property and so also the plaintiff claiming the possession over the suit schedule property. Admittedly the said suit schedule property as per the petitioner is a dry and wet land of an extent of Ac.1-13 guntas in Sy.No.250 17 of the E&i*l 5 Duggondi village, Warangal district and The boun: aries of the land, as stated by the petitioner, are: Bast: Pedda Che I uvi, West: Road, North: Land of Puli Ravi and Puli Iylaiah, louth: Land of Bommakanti Rar.i.

10. The respondent/petitioner herein Iiled this suit against the said defendant and the respondent claims tl at the said suit land is admeasuring Ac.O-36 guntas of dry land I Sy. No.250/7 of Duggondi village, Warangal u,ith the boundarie s of East: Pedda Cheruvi, West: Road, North: Land of Puli Ravi i nd Puli Iylaiah, South: Land of Bommakanti Ravi and the petitic ner also further argued and contended that as boundaries menti. ned by both the parties are one ald the sarne and it is conte r ded by learned counsel for the revision petitioner that as the plaintiff is also claiming the land of Ac. 1-13 guntas, the boundar i )s are being one and the same and he also further argued an<[ contended that allou,ing of the Commissioner application arnoun: ; to collection of evidence and that the plaintiff has to prove his czir e independently ald place before the Court the relevant materia,l '.( prove his case, but cannot seek appointment of Advocate Comn issioner for the sarne and he a1so relied upon judgment of the Hi Jh Court for the State of Telangana in 2016 (3) ALD 49 in 6 (. !.: "Para 4: Having considered the rival submissions one thing may be noticed that the IA was filed invoking inherent powers of the court under section 151 CpC. CPC does not provide any specific provision for reopening of a case after completion of recording evidence. It is only for that reason petitioners had invoked the inherent power under Section 151 CpC. The -invoking of inherent power under Section 151 C.P.C. in the facts of the present case is for bringing of Further evidence in the form of an Advocate Commissioner's report by the petitioners. In that view of the matter, the procedure for adducing and recording of evidence as provided for under Order yIVIII may be noticed. Order XVI C.p.C. deals with the rights of the parties for leading evidence and for further addressing arguments including the power of the Court to examine or cross- examining a witness and also recall and reexamine a witness. Order XVIII Rule 17A C.P.C. where a provision was available for production of evidence not previously known or which could not be produced despite due diligence was repealed by the Act 46 of 1999, Code of Civil Procedure (Amendment) Act, 1999 with effect from 01.07.2002. In other words, the right of a party to produce evidence not previously known or which could not be produced despite due diligence was also taken away. The effect of the omission of Order XVIII Rule 17A C.P.C. in the context of the other provisions would leave no manner of doubt that the parties to the proceedings are required to be diligent in the First instance and at every staqe to protect their interesLs and bring best possible evidence at the earliest. The same is evident from various other amendments which have been brought in the CPC. The object of various amendments is to curtail the delay in disposal of the suits and to discourage the parties to the suit to prolong the proceedings. In the present case, it is not even the case of the petitioners that the application of the nature seeking appointment of the Advocate Commissioner to note the physical features of the suit sctxdule land could not 7 have been made at the earliest point of time. We may note that I le suit came to be filed in the year 2006, numbered ln the year 2007 and the vir tten statement itself came to be filed by the petitioners on 28.03.2007. It is r r admitted fact that the suit is at the stage of arguments of the defendants. At tr ; belated stage the relief of the nature cannot be granted. Another aspect wlri :h needs to be considered is maintainability oF such application invoking se,t1 on 151 C.P.C. though relief oF the nature is akin to the relief that could be (r rsidered under Order XVIII Rule 17A C.P,C. The enormous delay that is likely r be caused in entertaining the applications of this nature at every stage succirx ily elaborate in the judgment cited by the learned counsel for the respondents. /\ this stage, this court is conscious of the limitations. Further allowing of the al )lication of this nature at thls stage would only be paving way for one or the otlt, r of the parties to fill lacuna in evidences which is also not permissible, In t rt view of the matter, the order passed by the junior civil judge refusing t entertain the application for reopening of the case and further refusal to;r1 point advocate commissioner cannot be found fault and accordingly there are r l merits in the Civil Revision Petition." and 2019 SCC Online SC 1034 in "Para 10: Order )O(VI, Rule 9 of the Code, inter alia, provides t1 t in any suit in which the Court deems a local investigation to b€ requisite cr proper for the purpose of elucidating any matter in dispute, the Court may issL ) a commission to such person as it thinks fit directing him to make such rnv,l tigation and to report thereon to the Court, Meaning thereby that it has to be t r I satisfaction of the Court that a local investigation is necessary or proper fo .he purpose of elucidating any matter in dispute. This provision is not a toc I which is to be permitted to be used by the parties concerned to create eviden(€ in their favour. B i This important aspect of the matter has also been lost sight of by the learned Trial Court whtle passing the rmpugned order.,, 11. No doubt the said judgment which is cited before this court being distinguishable for the reason that the facts in the present set of facts being different arrd that which was in respect of Order 18 Rule 17(A) of CpC. Where it is the case for bringing the further evidence in the form of an Advocate commissioner report by the Advocate. As such the said judgment is not helpful to the petition and so also the judgment which is cited i.e., 20 19 SCC Online SC 1034 as it is in the nature of persuasion. In such situation, the Court should appoint a Commissioner for the purpose of l0cation of the suit schedule property and also f,rx the boundaries, no doubt the extent which claimed by the petitioner/ plaintiff a,d the respondent/defendant are totally one and the same which needs to be ascertained, if it is ascertained that may throw some light on the factual aspects of the plaintiff and the defendant which would also assist the Court for adjudicating the matter, as such this Court do not see any ground for interference with the findings of the order of the learned trial Judge.

12. Hence for the said reasons the revision petition is dismissed confirming the order passed by the learned Judge in I I i I ! I I I E i I I i I i i ! i 9 I.A.No.4 of 2O16 in I.A.No. 127 of 20 15 in O.S. ,1o.68 of 2015. However, added to the sarne the advocate commiss .oner appointed sha-ll note doq'n the boundaries of the land whi(rll :ere ciaimed by the plaintiff basrng on the extent of lalrd i.e. to i I Sy.No.25-l7 of Duggondi Village and also to note dou,n the boun< aries of land of an extent of Ac.O-36 guntas claimed by the 1r aintiff and the defendant respectively and place the same by wetl of report before the trial Court. The said exercise of Advocate [)<r nmissioner and the execution of Commission shali be concluded r'' thin one month from the date of receipt of this Order. Miscellaneous petitions, if any are pendr r g, shall stand dismissed. \ t SD/. U.SUDHA ASS'I TANTREGISTRAR //TRUE COPY// /'2 , iECTION OFFICER To, 1 The J^unior Civ'l Judge. at Narsampet. Warangal District 2 One CC to Sri G.Anandam. Advoiate (OpUCi) 3. Two CD Copies KS/PSL o i !. ,F*, ) 'i ,i ...' ,,) it1 S i,q \ ,1 r"'i,q ?il,!i: /. 't' c)l J\.1 *\. ,r.,' * ,.r' HIGH COURT DATED:2811112025 ORDER CRP.No.2172 of 2016 Dismissing the C.R.P Without costs. 0) 9L