In case of Satish Agarwal Ors v. Tirath Singhr, it was held as under

4. Smt. Bombianpad Satyamma, Wo. B. Ramanna Aged about g2 years, Occ Housewife, Rio. Netaji Nagar Town and Mandal, Narayanpet Distriit. ...Petitioner/Defendants No. I to 4 AND 1 G. Ramakrishna Reddy, S/o. Buchi Reddy, Aged about 84 years, Occ Govt. Servant, R/o. H.No. 5-327, Behind Grampanchayath, Makthal Town and Mandal, Narayanpet District 2 J 4 Q Ram Reddy, S/o. G. Ramakrishna Reddy, Aged about 56 years, Occ Business, R/o. H.No. 5-327, Behind Grampanchayath, Makthal Town and Mandal, Narayanpet Distrd G. Ralpal Reddy, Sio. G. Ramakrishna Reddy, Aged about 53 years, Occ Business, R/o. H.No. 5-327, Behind Grampanchayath, Makthal Town and Mandal, Narayanpet District E. Niraja, Wo. Vishnu Vardhan Reddy, Aged about 54 years, Occ Housewife, Rio. H.No. 16-9-831l12l1lA, Sarojini Nayudu Colony, Old Malakpet, Hyderabad ...RESPONDENTS/PIaintiffs No.1 to 4 IA NO: 1 OF 2024 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. 112023 on the file of Principal District Judge, Narayanpet Counsel for the Petitioners: SRl. A NARASIMHA RAO Counsel for the Respondents: SRI S M RAFEE The Court made the following: ORDER r HONOURABLE SRI IUSTICE B. VIJAYSEN REDDY CIVI REVISION PETITION No.4176 0F 2024 ORDER: The petitioners herein are defendants and the respondents herein are plaintiffs in O.S. No.1 of 2023 on the file of the learned principal District Judge, Narayanpet (for short trial Court') and both the parties are referred to as arrayed in the suit.

2. O.S. No.l of 2023 was filed by the plaintiffs seeking perperual injunction restraining the defendants from interfering with the peacetul possession and enjoyment of the plaintiffs in respect of the land admeasuring Ac.0-24 guntas in Survey No.280, situated at Makthal Viltage and Municipality, Makthal Mandal, Narayanpet District I.A. No.290 of 2024 in O.S. No.l of 2023 was filed bv rhe def'endants seeking the following relief: 'to appoint an advocate commissioner to note down the physical features including existence of structures by taking video and photographs ofthe suit schedule property' Counter was filed by the plaintiffs opposing the said application. Order dated, 12.12.2024 was passed by the trial Court dismissing the said application, which is challenged in this revision petition. I I I i 2 \

3. It is stated in the affidavit fited in support of.application in I'A' No'290 of 2024 thar defendant No.l is the owner r.nd possessor of Ac.0-20 guntas in Survey No.2g0lA/A, situated at Makr.hal Village and Mandal, Narayanpet District having purchased th,: same under registered sale deed bearing document No.l9g7 of 2022 from its lawful owncr and pattedar by name Ms. Bommanpad Satyamma. The plaintiffs filed vexatious suit against the defendants craiming to be in possession of the suit schedule property wherein the.y have alleged that they have constructed five rooms and other structures. The plaintiffs ha'e created documents laying false clainr over the suit schedule property. S ince there is confusion as to thc identity and existence of the suit schedule property which the plaintiffs are corroborating with the property of the defendants, it is necessary to appoint an advocate commissioner to note down the physical features and boundaries of the suit schedule property.

4. The plaintiffs filed counter to the application in I..z\. No.290 of 2024 contending that therc is no necessity for appoini.rnent of an advocate commissioner for the purpose stated by the defendants. Since it is already known that there are two tin sheet rooms in the suit schedule propefty which is adnritted in the judgment and decree passed t ) in O.S. No.29 of I99I and the defendants therein were directed to remove the rooms' That instead of removing the rooms in the suit schedule property, the defendants preferred appeal in A'S' No'3 of 2005 in the Court of the learned District Judge' Mahabubnagar' which wasdismissed.Thereafter,thedefendantspreferredsecondappealin S.A. No.l 160 of 2006 before the High Court which is pending' Since' the plaintiffs admitted in O'S' No'l of 2023 thatthere is existence of rooms in the suit schedule property' there is no necessity for appointing an advocate commissioner for noting down the physical features and boundaries ofthe suit schedule proPerty'

5. The trial Court, by the order dated 12'12'2024 held that advocate commissioner cannot be appointed as the application in I'A' No'290 ol 2024 wasfiled at the fag end of the suit' That in the earlier rouud of titigation in O.S' No'29 of lggl' it was held that the structures are existing in the suit schedule property' The trial Court also noted that it is settled principle of Iaw an advocate commissioner is not competent to take evidence on the point of possession nor the Court is competent to act upon the evidence taken by the commissioner and the parrics must prove their case by way of evidence' If the Court wants' it aai' -f-,'l 4 appoint advocate commissioner in case any issue or nratter in dispute requ lres any clarification Counsel.

6. Mr. S. Hari Haran, leamed Senior appearing for Mr. A. Narasimha Rao, learned counsel for the petition:rs (defendants therein)' submitted that the defendants are not parties to the earrier suit in O.S. No.29 of 1991, thus, the findings therein are nor binding on them. The application in I.A. No.290 of 2024in O.S. No.l o1.2023 was filed at the appropriate stage during recording ofevidence. Theiefore, the finding of the trial court that application was filed at the f-ag end of the suit is incorrect. Even after the evidence of the parties has been completed, there is no bar for filing application for appointment of an advocate commissioner under Order XXVI Rule 9 of C.p.C.

7. Learned counsel for the respondeints (plaintitfs therein) submitted that in a suit filed for injunction simpricitor, apprication for appotntment of an advocate commissioner for noting down the physical features of propeny would not be entertained. The parties have to prove their possession over the suit schedule p,roperty by adducing oral and documentary evidence. The application for appointment of an advocate commissioner is filed in abuse of larv. It is F 5 settled principle of law that an Advocate Commissioner cannot be appointed for collecting evidence.

8. In the order under revision, the trial Court noted that the evidence is concluded and when the suit has reached its fag end stage, LA. No.290 of 2024 is filed; under Order XXVI Rule 9 of the C.p.C.. the advocate commissioner can be appointed for clari$zing any issue in dispute; the parties in the suit must prove their case,, by way of evidence. It is settled principle of law that the advocate commissioner is not competent to take evidence on the point of possession nor the trial Court is competent to act upon the evidence taken by the advocate commissioner. The trial Court further recorded that in the earlier round of litigation in O.S. No.29 of 1991, the suit was decreed in favour of the plaintiffs therein which was confirmed in A.S. No.3 of 2005 whereunder the decree was passed for the relief of recovery ol possession of 12' X 18' feet in the westem side comer of the suit schedule property after demolishing the structures erected during the pendency of the suit within three (3) months. The trial Court and the appellate Court found that there are structures in the suit schedule property. It was also pointed out by the trial Court that the suit is for bare injunction and the plaintiffs therein have ro establish their 6 possession and enjoyment over the suit schedule property and appointment of an advocate commissioner at the instance of the defendants to note down the physicar features including the structures and its videos and photographs is not at all required.

9. Leamed counsel for the petitioners relied on the following judgments of the Hon,ble Supreme Court: In case of Satish Agarwal & Ors. v. Tirath Singhr, it was held as under: "He allowed the matters to go on and even after the stage of evidence rvhen the matter awaiting arguments he came forward with an application for tocal irivestigation in my view, this is nothing but to flll up the lacuna in the evirlence of the defendants landlords. In other words, for the purpose of fishing out evidence, thc delendants could not supply evidence and according to the decision of this Court in the case of the lnstitution of Engineers (Inclia) (supra) such practice should nor bc allowed if this is for'the puryose of fishing out evidence', In case of Tulamaya Chettri and another v. yonarayan Pradhan and others2, it was held as under: "Ordinarity we would not have interfered with an order appointing an amin commissioner but in the case at hand parties have closed their evidcnce and when the matter was at the stage of ar-euments the respondents came up with prayer for appointment of a commissioner. In view o1. the admitted fact that parties have already closed their evidence, 1996 AtHC 176 I AIR 2004 sikk i9 T 7 acceding to the prayer for appointment of an amin commissioner at this belated stage would amount to permitting the respondents to fill up lacunae in their evidence thus leading to a roving inquiry. A learned single Judge of the Calcutta High Court in Satish Agarwal v. Tirath Singh, 1996 AIHC 176l has held that when the matter awaits arguments, the prayer made by the defendants for local investigation, if atlowed would amount to filling up lacunae in their evidence and such prayer should not be allowed." In case of B.S. Nazir Hassan Khan v. Aswathanarayana Rao and otherss, it was held as under: "To my mind, it is necessary that ail applications of this type even ifthey are bona fide and genuine, have to be filed at a proper point of time in the proceedings. This is very necessary also from the point of view of the stage of the proceedings because, the learned trial Judge, is perfectly right when he pointed out that if this application wire to be entertained, even assuming that was the position, it would mean that the trial which has reached the arguments stage, would get dilated, evidence will have to be re-commenced."

10. As seen from the averments in the affidavit in I.A. No.290 of 2024, the purpose of hling the application is to appoint an advocate commissioner to note down the physical features and boundaries of the suit schedule property as there is confusion as to the identity and existence of the suit schedule property. Thus, it is clear that the very purpose of filing the application seeking appointment of Advocate Commissioner is to collect evidence which is not permissible as per the ' AIn 2oo+ Kar 92 8 settled principle of law. Moreover, the evidence has ber:n crosed and at the fag end of the suit, I.A. No.290 of 2021 is filed anri if the same is allowed, it would amount to allowing the defendants to fill up lacunae in their case This Court does not find any illegality or irregularity in the order dated 12.12.2024 passed by the trial Court in I.A No.290 <tf 2024 in O.S. No. I of 2023 . There are no merits in this rev;sion petition. Accordingly, this civil revision petition is dismissed. There shall be no order as 10 costs. As a sequel thereto, miscellaneous applications, il.,rny, pending in the civil revision petition stand closed. To, //TRUE COPYII SD/. K.BHAVANI SWAMY ASSITANT REGISTRAR \ \ ECTION OFFICER

1. The Principal Distrjct Judge at Narayanpet. 2 One CC to SRt A NARASTMHA RAO, Advocate [OPUC] 3. One CC to SRt. S IU RAFEE, Advocate tOpUCl 4. Two CD Copies N. KV/PSL \ I I i I l i / HIGH COURT DATED: 15104t2025 ORDER CRP.No.4176 of 2024 R HT E s a4 itl ,luu M \ .I't c t) \ DISMISSED OF THE CRP WITHOUT COSTS 4 b