In the judgment in Hayana Waqf Board v. Shanti Sarup and ors. (10) supra, the Hon'ble Apex Court held that the Commissioner can be appointed in injunction suits also. In J. Satyasri Rambabu v. A. Anasuya and anr. (5 supra) and G. Nagabhushanam v. T. Eswaramma (1 supra) cited by the learned counsel for the petitioners, this Court also held that for the related purpose of clarifying the physical features of the suit schedule property there can be appointment of Commissioner even in a suit for perpetual injunction. The judgments rendered in Thalla Sulochana v. Thalla Isaac and anr., (2 supra) and Yenugonda Bal Reddy v. Manemma and ors., (3 supra) would not render any assistance to the case of the petitioners in the facts and circumstances of the case.
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Andhra High Court
1.K.Dayanand And Another vs P. Sampath Kumar, S/O. ... on 11 November, 2014
Defendants in O.S.No.148 of 2011 on the file of the Court of the Junior Civil Judge, Nalgonda, are the revision petitioners. This revision assails the order of the said Court dated 8.08.2013, allowing I.A.No.713 of 2011, filed by the respondent/plaintiff under the provisions of Order XXVI Rules 1 and 9, r/w Section 151 of C.P.C.
2. The facts and circumstances leading to filing of the present revision are as under:
The respondent instituted O.S.No.148 of 2011 against the petitioners, seeking perpetual injunction, restraining the petitioners from interfering with his peaceful possession and enjoyment of the plaint schedule property. The plaint schedule property is an extent of Ac.1.05 guntas of land in Sy.No.495 of Mamillagudem village, Nalgonda Mandal, Nalgonda District. In the said suit the respondent filed I.A.No.439 of 2011 under the provisions of Order 39 Rules 1 and 2 for temporary injunction. The Court below granted temporary injunction on 8.08.2013 and the petitioners herein filed C.M.A.No.5 of 2014 on the file of the 1st Additional District Judge, Nalgonda and the same is pending. The 1st respondent also filed the present I.A.No.713 of 2011 under Order XXVI Rules 1 and 9 r/w Section 151 of C.P.C., for appointment of Advocate Commissioner for noting down the physical features of the suit schedule property and also for a direction to the Commissioner to take photographs and video of the suit schedule property. Resisting the said application, the petitioners filed counter affidavit. The learned Junior Civil Judge, by virtue of an order dated 8.08.2013 allowed I.A.No.713 of 2011, appointing the Advocate Commissioner.
4. The present revision, filed under Article 227 of the Constitution of India, assails the said order.
5. Heard Sri K. Mahipathi Rao, learned counsel for the petitioners and Sri D. Radha Krishna, learned counsel for the respondent, apart from perusing the material available on record.
6. It is contended by the learned counsel for the petitioners that the order under revision is erroneous, contrary to law and opposed to the very spirit and object of the provisions of Section 75 and Order XXVI Rules 1 and 9 of C.P.C. It is further contended that the learned Judge grossly erred in not taking into consideration the averments in the counter affidavit filed before the Court below. It is further contended that since the present suit is a simple suit for injunction, appointment of Commissioner is impermissible and entire effort of the respondent is obviously for collection of evidence. It is nextly contended that the application filed by the respondent is a premature one. In support of his submissions and contentions the learned counsel places reliance on the judgments of this Court in G. Nagabhushanam v. T. Eswaramma , Thalla Sulochana v. Thalla Isaac and anr. , Yenugonda Bal Reddy v. Manemma and ors. and Dammalapati Satyanarayana & ors. v. Datla Venkata Ramabhadra Raju @ D.V.R. Raju & anr. .
7. Per contra, it is contended by the learned counsel for the respondent that the learned Junior Civil Judge passed the impugned order strictly in conformity with the provisions of Section 75 and Order XXVI Rule 9 of C.P.C. and there is neither jurisdictional error nor any patent infirmity nor any perversity in the impugned order, as such, the same is not amenable to any challenge under Article 227 of the Constitution of India. The learned counsel nextly contends that in the existing facts and circumstances of the case it is highly essential to appoint the Commissioner to arrive at a just, appropriate and proper conclusion. It is further submitted that there is no absolute prohibition on the appointment of commissioner even in the suits for simple injunction. To bolster his submissions and contentions, the learned counsel places reliance on the judgments of this Court and the Honble Supreme Court in J. Satyasri Rambabu v. A. Anasuya and anr. , Shaik Zareena Kasam v. Patan Sadab Khan and ors. , ECE Industries Limited v. S.P. Real Estate Developers Private Limited , M.L. Srinivas Rao v. J. Kurien , Varala Ramachandra Reddy v. Mekala Yadi Reddy and ors. , and Hayana Waqf Board v. Shanti Sarup and ors. .
8. In the above backdrop, now the issue that emerges for consideration of this Court is whether the order under revision is sustainable and tenable and the same requires any correction by this Court under Article 227 of the Constitution of India.
9. It is an admitted fact that the relief sought in the main suit is perpetual injunction in respect of the land admeasuring Ac.1.05 guntas situated in Sy.NO.495 of Mamilla Gudem Village, Nalgonda District. It is also an admitted fact that along with the suit, the respondent herein filed I.A.No.439 of 2011 under Order 39 Rules 1 and 2, seeking temporary injunction and the Court below by virtue of the order dated 8.08.2013 granted temporary injunction in favour of the respondent and as against which the petitioners herein filed C.M.A.No.5 of 2014 on the file of the Court of the 1st Additional District Judge, Nalgonda and the same is pending. It is also an admitted fact that no interim order has been granted in the said C.M.A., and the injunction is subsisting in favour of the respondent as on date.
10. The respondent filed the present I.A. under the provisions of Order XXVI Rules 1 and 9 of C.P.C, seeking appointment of Advocate Commissioner to note down the physical features of the suit schedule property and also for a direction to the Commissioner to take photographs and video of the scheduled property. In the affidavit filed in support of the present application, the respondent stated that the total area of the suit schedule property is Ac.1.05 guntas, which is an agricultural land and he raised sesame crop in the suit schedule property and that he is in exclusive possession of the same. In the said affidavit the respondent further stated that he erected fencing around the suit schedule property by fixing the gate and also constructed a small room towards South West corner for the purpose of residence of his farm servant and also obtained a service connection from the Electricity Department. The said affidavit further states that in order to prove his case that schedule property is an agricultural land and is not converted into house plots and there are no roads in existence at all, appointment of Advocate Commissioner is necessary to note down the physical features of the suit schedule property.
11. The case of the petitioners on the other hand is that since the present suit is a simple suit for injunction, appointment of advocate commissioner is impermissible and the present application is an attempt for collection of evidence.
12. A perusal of the impugned order manifestly discloses that the learned Junior Civil Judge thoroughly and meticulously considered the entire material before him and passed the order under challenge. The learned Judge also relied upon the judgment of this Court in Varala Ramchandra Reddy v. Mekala Yadi Reddy and ors. (9 supra). The learned Judge also recorded a finding that in order to know the details about the dispute and contested facts of the suit schedule property, it would be just and necessary to appoint an Advocate Commissioner to arrive at just conclusion.
13. In this context it is appropriate to refer to the judgments cited by the respective counsel.
14. In G. Nagabhushanam v. T. Eswaramma (1 supra) this Court at paragraph Nos.7 to 12 held as under:
The suit filed by the respondent is the one, for injunction simplicitor. The only issue that becomes relevant is, as to whether the respondent is in possession of the suit schedule property and whether the petitioner is interfering with the possession. It is not known as to whether the trial of the suit has commenced as yet.
The burden to prove the possession is squarely upon the respondent. Appointment of Commissioner in suits for injunction, be it; at the instance of the plaintiff, is a rare phenomenon. Even where such Commissioners are appointed, it would be only for the limited purpose of clarifying the physical features of the suit schedule property.
In the instant case, the petitioner being the defendant in the suit, filed an I.A., under Order XXVI Rule 9 CPC. Further, the prayer in the I.A is clearly outside the scope of the suit. He wanted the measurements of not only the suit schedule property, but also the lands in other survey numbers. Such a course would not have been permissible in a suit for declaration also this Court has set aside the order dated 3.11.2007, and directed the trial Court to pass fresh orders. The trial Court passed an order dated 11.04.2008, directing that the physical features of the plaint schedule property alone be noted. Though the petitioner feels aggrieved by this order and prays for a direction for measurement of the suit schedule property and also the neighbouring land, with reference to the sale deeds, this Court is not inclined to accede to the request of the petitioner.
On the one hand, the petitioner filed CRP, assailing the order dated 11.04.2008, and on the other hand, filed a fresh application under Order XXVI Rule 9 CPC. The prayer in I.A.No.664 of 2008 is somewhat deceptive. He wanted the measurements of the properties, either through the existing Commissioner, or by appointing another Commissioner. To pave way for this he filed another application for reopening of the suit.
If one looks at the practices adopted by the petitioner at various stages, an impression would certainly be gained that he is resorting to gross misuse of process of Court and preventing the trial Court, from proceeding with the trial. It is on account of such cantankerous litigants that the matters are pending for years together and an otherwise simple litigation is getting complicated.
Hence, the civil revision petitions are dismissed, and it is directed that in case, the petitioner filed such frivolous petitions before the trial Court, the trial Court shall consider the feasibility of imposing maximum costs that are permissible in law. The trial Court shall endeavour to proceed with the trial and dispose of the suit, within three months, from the date of receipt of a copy of this order. There shall be no order as to costs.
15. In Thalla Sulochana v. Thalla Isaac and another (2 supra) this Court at paragraph No.4 held as under:
Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short the CPC), the Court issues commissions inter alia for the purpose of elucidating any matter in dispute. As noted above, while it is the case of respondent No.1 that the gift deed executed by his father was acted upon, the petitioner is relying upon the family settlement, on the strength of which she is, allegedly, in possession of a part of the suit schedule property. There is no dispute regarding the identity or the boundaries of the suit schedule property. Having regard to the nature of the respective pleadings of the parties, the dispute needs to be adjudicated with reference to the evidence to be produced by the parties. The law is well settled that an Advocate-Commissioner is not appointed for the purpose of gathering evidence in support of one of the parties. The purpose of the petitioner seeking appointment of Advocate Commissioner is to lend support to her plea that the suit schedule property consists of different portions and hat the petitioner is living in one such portion. In my opinion, this falls in the realm of evidence, which needs to be let in by the petitioner by independent evidence and not by obtaining report of the Advocate-Commissioner in this view of the matter, I do not find any reason to interfere with the order under revision.
16. In Yenugonda Bal Redy v. Manemma and ors. (3 supra) this Court held as under:
The present suit has been filed by the petitioner herein for declaration of her title and consequential permanent injunction over the plaint schedule property. In those circumstances, this Court is of the view that even if an Advocate-Commissioner is appointed, as the boundaries are already fixed, he cannot further divide the same and fix up the boundaries. When once the possession itself is in dispute, it is for the plaintiff to plead and establish that he is in possession of plaint schedule property. In fact, after institution of the said suit, some properties from out of the plaint schedule properties were sold. All these circumstances weighed with the Court below in holding that an Advocate-Commissioner need not be appointed and the said finding appears to be correct, which need no interference by this Court.
17. In Dammalapati Satyanarayana & ors. v. Datla Venkata Ramabhadra Raju @ D.V.R. Raju & anr. (4 supra), this Court at paragraph No.6 held as under:
The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. It must be noted that the so-called title deeds must be accepted by the Court in evidence, before they constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence. If the report is submitted, even before the evidence is adduced, a stage may come, where the whole trial will revolve around such report.
18. In the judgment cited by the respondent, in J. Satyasri Rambabu v. A. Anasuya and anr. (5 supra), this Court at paragraph No.6 held as under:
It is no doubt true that the Courts are normally reluctant to appoint a Commissioner for noting physical features of the suit schedule property, particularly in a suit for injunction since the same would amount to collecting evidence in favour of one of the parties. However, there is absolutely no reason to hold that it is a hard and fact rule. Having regard to the facts and circumstances of the case and particularly whenever the Court prima facie finds that there is an attempt on the part of one of the parties to alter the physical features of the suit property and it is necessary to take note of the same, it is always open to the Court to appoint a Commissioner for inspection of such property. It is relevant to note that Order XXXIX Rule 7 of the Code of Civil Procedure empowers the Court to make an order for detention, preservation or inspection of any property, which is the subject matter of the suit, if the Court feels that such action is necessary or expedient for the purpose of obtaining full information or evidence. In the light of the above said provision, I am unable to agree with the contention of the learned Counsel for the petitioner that the Court below has committed an error in appointing an Advocate Commissioner. As already noted above the specific plea of the plaintiffs is that in spite of the order of temporary injunction the defendant has been taking steps to alter the nature of the suit schedule land. In the circumstances, the Court below having considered the entire material on record has rightly appointed an Advocate Commissioner. The said order cannot be said to be vitiate on account of any patent error of fact or law and therefore, does not warrant interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
19. In Shaik Zareena Kasam v. Patan Sadab Khan and ors. (6 supra), this Court at paragraph No.10 held as under:
Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary. It is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties. If there is some delay in filing the application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable costs, but it is not desirable to dismiss an application on the ground of mere delay in filing it. In the light of the above referred decisions, I am of the view that the impugned order does not sustain in the eyes of law.
20. In ECE Industries Limited v. S.P. Real Estate Developers Private Limited (7 supra) this Court at paragraph Nos.9 and 10 held as under:
After hearing the learned counsel for the parties and after going through the Commissioners report, we are of the prima facie view that before deciding this special leave petition finally on merits, it would be proper in order to do complete justice to find out the actual position of the suit property i.e.:
(i) Whether constructions have been made on the different blocks of the suit property and how many blocks are still remaining vacant?
(ii) If constructions have been made, what is the nature and extent of such construction?
(iii) Whether such constructions can be said to be substantial constructions or not?
(iv) Whether constructions have been completed in some blocks of the suit property and the flats constructed in such blocks are ready for use and occupation?
To find out the aforesaid, we appoint Shri Ram Krishna Prasad, a learned advocate of this Court, who will visit the suit property in course of this week by giving prior notice to both the sides and submit a report on the abovementioned items by next Monday i.e. on 27.07.2009. The matter will be placed again for consideration of the said report on 28.07.2009. We make it clear that there will be no further hearing in the matter.
The entire expenses of the learned Advocate Commissioner for visiting the site and coming back to Delhi, shall be met by the respondents and the remuneration of the Commissioner shall also be borne by the respondents, which is assessed at Rs.30,000/- to be paid in course of this Friday i.e. 24.07.2009.
20. In M.L. Srinivas Rao v. J. Kurien (8 supra) this Court held as under:
There is a boundary dispute between the parties to the suit. The petitioner/plaintiff filed an application for appointment of Commissioner to demarcate the lands and submit his report. This application has been dismissed on the ground that appointment of Commissioner to survey and demarcate the lands is not permissible in a suit for permanent injunction. This finding appears to be contrary to law because there is no provision in law whereby demarcation of the land is forbidden in a suit for permanent injunction. By surveying and emarcating the lands in question, the Commissioner shall only report about the boundaries of the respective parties and it is nothing to do with the title of the parties to the suit. Order of rejection of an application for appointment of Advocate Commissioner is set aside.
21. At this juncture, it is also appropriate to refer to the judgment of the Honble Apex Court reported in Haryana Waqf Board and others Vs. Shanti Sarup and Ors., and the judgment of this Court in Donadulu Uma Devi v. Girika Katamaiah @ Basaiah .
22. In Haryana Wakf Board v. Shanti Sarup (11 supra) the Hon'ble Apex Court at paragraphs 4 to 8 held as under:
Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.
The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.
It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.
For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then decided the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file.
The High court is requested to decide the second appeal in the light of the observations made hereinabove within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs.
23. In Donadulu Uma Devi v. Girika Katamaiah @ Basaiah (12 supra) this Court at paragraphs 8 to 12 held as under:
These observations or findings of the Supreme Court clearly mandate that when there is a dispute or issue with regards to identity of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited.
Therefore the appointment of a commissioner in that context is not against the ambit of Order XXVI Rule 9 CPC which is relevant here. This provision contemplates Commissions to make local investigations in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
By virtue of this provision appointment of a Commissioner to visit the suit property and also demarcate the property or properties taking assistance from a qualified surveyor and also note the physical features of the property in question is qualified. The words incorporated In any suit in which the Court deals (sic. Deems) a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court are very important in the present context. There is no restriction with regard to the appointment of a person to carry out such local investigation for the purposes noted therein. This includes impliedly the power of the Court to appoint a commissioner to visit such property and get it surveyed and also noted its physical features taking help from a qualified surveyor subject to necessary requirement.
Thereby the statute permits in that context collection of required evidence in that behalf by way of visiting the property demarcating it and localizing it and also just noting the physical features thereon subject to the limitations enumerated in the Order. So the Court shall fully utilize this provision when the implementation of it is needed for proper disposal of the proceedings before it. Generally a report filed by such a person or commissioner with regard to those aspects is taken into consideration for the purpose of deciding an issue before a Court in respect of which such commission is carried out unless for reasons to be recorded that is set aside and another Commissioner is appointed in that behalf. Prevention of collection of such evidence is definitely against the purport of this statutory provision which thereby cannot be permitted. When a person got a right to make use of certain provision of law for proper adjudication of a matter in controversy accordingly he is to be permitted to avail that provision otherwise that becomes redundant. The availment of the provision may be disallowed if that results in causing prejudice or loss to a party or lead to recording of evidence which cannot and should not be done by the Commissioner one way or the other. Mostly what the Commissioners so appointed do and report consequently in the cases of this nature will not affect the rights of the parties to the litigation owing to the fact that the determination of their rights could only be on the basis of necessary oral and documentary evidence they adduce before the Court which cannot be done by way of appointing Commissioners to localize their properties or note their physical features as required which can be used as an aid to achieve the main object. Therefore, it is always encouraging to see that such localization is carried out at the beginning of corresponding litigation only.
The question of identity of properties involved in litigation will have same bearing irrespective of the nature of the consequential relief sought for be it for granting permanent injunction or declaration or possession etc., as the case may be. By that reason no differentiation can be made while entertaining the plea of demarcation of the properties concerned.
24. In the judgment in Hayana Waqf Board v. Shanti Sarup and ors. (10) supra, the Hon'ble Apex Court held that the Commissioner can be appointed in injunction suits also. In J. Satyasri Rambabu v. A. Anasuya and anr. (5 supra) and G. Nagabhushanam v. T. Eswaramma (1 supra) cited by the learned counsel for the petitioners, this Court also held that for the related purpose of clarifying the physical features of the suit schedule property there can be appointment of Commissioner even in a suit for perpetual injunction. The judgments rendered in Thalla Sulochana v. Thalla Isaac and anr., (2 supra) and Yenugonda Bal Reddy v. Manemma and ors., (3 supra) would not render any assistance to the case of the petitioners in the facts and circumstances of the case.
25. There is no absolute bar on appointment of Commissioner in a suit for injunction also as per the law laid down in the above referred judgments nor the provisions of Section 75 and Order XXVI Rule 9 do impose such a prohibition. The respondent-plaintiff filed the present application for appointment of Advocate Commissioner to note down the physical features of the schedule property only and not for the purpose of finding out who is in possession of the property. The Court below recorded valid reasons for appointment of Commissioner. The Court below in the considered opinion of this Court is perfectly justified in appointing the Advocate Commissioner and that the said order is in accordance with the principles laid down in the above referred judgments. Therefore, the order under revision does neither suffer from any fundamental infirmity nor any jurisdictional error, which warrants interference of this Court under Article 227 of the Constitution of India. Taking into consideration the totality of circumstances, this Court is of the considered view that appointment of Commissioner in this case would undoubtedly and certainly assist the Court below to arrive at a just and correct conclusion.
26. For the aforesaid reasons and having regard to the principles and parameters laid down in the above referred judgments, the civil revision petition is dismissed, confirming the order passed by the Court below in I.A.No.713 of 2013. No order as to costs. As a sequel, the miscellaneous petitions, if any, shall stand closed. _______________________ JUSTICE A.V. SESHA SAI.
11th November, 2014
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