(Prayer: Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to Aggrieved by the order dt. 02.02.2024 passed in I.A. No. 324 of 2021 in O.S. No. 116 of 2016 on the file of court of 1 st Additional Senior Civil Judge, Kakinada, the above named petitioner begs to present this memorandum of civil revision petition for the following among other
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 pleased to grant stay of further proceedings in O.S. No. 116 of 2016 on the file of court of I Additional Senior Civil Judge, Kakinada pending disposal of the above civil revision petition and pass
IA NO: 1 OF 2025
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 may be pleased to extend the Interim Order granted on 24.04.2024 and extended on 26.06.2024 and further extended on 17.09.2024 until next date of hearing pending determination of the present CRP No. 493 of 2024 and pass)
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioners/plaintiffs challenging the order passed by the learned I Additional Senior Civil Judge, Kakinada, dated 02.02.2024 in I.A.No.324 of 2021 in O.S.No.116 of 2016, whereby, the Court below dismissed the application filed by the petitioners/plaintiffs under Order XXVI Rule 9 of the Code of Civil Procedure (for short „CPC‟) to appoint an advocate commissioner to localize the properties, survey numbers and measure the properties of petitioners/plaintiffs and respondent/defendant with the assistance of the mandal surveyor.
2. Brief facts of the case are as under:
(a) For the sake of convenience, the parties will be referred to as they are arrayed in the suit. All the plaintiffs purchased different extents of lands as mentioned in the suit schedule amounting to a total extent of 1597 square yards. As on the date of purchase, the defendant is in possession of a land to an extent of 160 square yards out of the total extent of land by running a sweets stall and promised the plaintiffs that he would vacate the schedule property as and when required. Accordingly, the plaintiffs permitted the defendant to run the sweets stall.
(b) While the matter stood thus, when the plaintiffs directed the defendant to vacate the plaint schedule property and to deliver vacant possession of the same, the defendant has been postponing the same on one pretext or the other. As such, the plaintiffs filed O.S.No.116 of 2016 before the Court below seeking a decree against the defendant for recovery of the plaint schedule property and to grant permanent injunction restraining the defendant from interfering with the plaint schedule property. The said suit was contested by the defendant by filing a written statement wherein he asserted that he is the owner of the plaint schedule property and relied upon few title deeds in support of his contention. It is the contention of the plaintiffs that the survey numbers mentioned in the title deeds relied upon by the defendant are different in entirety when compared to that of the plaint schedule property and to arrive at a just conclusion, the plaintiffs filed I.A.No.324 of 2021 under Order XXVI Rule 9 of CPC before the Court below, with a plea to appoint an advocate commissioner to localize the properties, survey numbers and measure the plaint schedule property as per the title deeds relied upon by the plaintiffs and the defendant.
(c) The Court below, having observed that the plaintiffs filed the said application to collect evidence under the guise of local investigation, dismissed the application filed by the plaintiffs vide order dated 02.02.2024. Aggrieved by the same, the plaintiffs filed this civil revision petition.
3. When the revision petition came up for hearing on 24.04.2024, this Court has granted stay of all further proceedings in O.S.No.116 of 2016 on the file of the Court of the I Additional Senior Civil Judge, Kakinada, initially for a period of eight weeks, which was subsequently extended from time to time.
4. Heard Sri. Patanjali Pamidighantam, learned counsel for the petitioners and Sri. G. Yaswanth, learned counsel for the respondent. Perused the entire material available on record.
5. A perusal of the entire record would go to show that the subject suit was instituted by the plaintiffs for recovery of the plaint schedule property to an extent of 1597 square yards, which was purchased by them and to grant permanent injunction restraining the defendant from interfering with the plaint schedule property. In contra, the defendant contested the suit by contending that the suit schedule property is owned by him having purchased the same under different title deeds. It is the case of the plaintiffs that though the title deeds relied on by the defendant does not belong to the suit schedule property, under the guise of such title deeds, the defendant is trying to grab on the suit schedule property as if he is the owner of the same. In order to arrive at the right conclusion regarding the ownership of the suit schedule property, the plaintiffs filed an application before the Court below under Order XXVI Rule 9 of CPC requesting the Court below to appoint an Advocate Commissioner to localize the properties, survey numbers and measure the suit schedule property with the assistance of the Mandal Surveyor.
6. The Court below, taking into consideration the rival contentions putforth by the plaintiffs and the defendant, dismissed the application filed by the plaintiffs vide impugned order dated 02.02.2024 by observing as under:
“14.…Moreover in his plaint as well as in this petition he clearly admitted the possession of the respondent by stating that as on the date of property purchased by them under the above six documents the respondent was in the possession by running sweet stall. Hence it shows that the petitioner is not definite about the suit schedule property to find out his property. In this case the petitioner is not sure about the suit schedule property, hence he cannot seek this court to appoint an Advocate Commissioner to inspect the suit schedule property.
15. As per the contention made by the counsel for the respondent, under the guise of local investigation, the petitioner filed this application to collect the evidence, it will not be allowed by this court.”
7. Appointment of Commissioner etc., is contemplated under Section 75 of Code of Civil Procedure and Order XXVI Rules 9 and 10 deals about the procedure to be followed by the Commissioner, which are extracted hereunder:
“Section 75 – Power of court to issue commissions: - Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
1. to examine any person;
2. to make a local investigation;
3. to examine or adjust accounts; or
4. to make a partition;
5. to hold a scientific, technical, or expert investigation;
6. to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
7. to perform any ministerial act.
Order XXVI Rules 9 and 10: -
9. 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:
10. Procedure of Commissioner.—
(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit. Commissioner may be examined in person.—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.”
8. Admittedly, the object of issuance of commission under Order XXVI Rules 9 and 10 of C.P.C., is to elucidate any matter in dispute but not to collect or gather evidence. An Advocate Commissioner cannot be appointed for making an enquiry about factum of possession of the property in dispute, which is nothing but fishing out evidence and not elucidating the matter in dispute.
9. It is to be noted that the power of the Court under Order XXVI Rule 9 of CPC is discretionary and the same has to be exercised in a judicious manner, depending on the facts and circumstances of each case. The Court has to appreciate the overall case by taking into consideration the pleadings of the parties and the reliefs claimed with reference to the controversy between the parties and the necessity to appoint Advocate Commissioner in deciding the dispute. It is settled law that an Advocate Commissioner can be appointed at any stage of the suit or during the pendency of the appeal.
10. In the case on hand, the plaintiffs filed the application seeking appointment of Advocate Commissioner on the premise that the survey numbers mentioned in the title deeds relied upon by the defendant do not belong to the suit schedule property and if the same are ascertained by a Surveyor by fixing the boundaries with reference to the documents and a report is filed by the Commissioner, the same would meet the ends of justice.
11. While dealing with the issue of appointment of an Advocate Commissioner, a learned Judge of the erstwhile Common High Court for the State of Telangana and the State of Andhra Pradesh at Hyderabad, in Bandi Samuel and another Vs. Medida Nageswara Rao(2017(1)ALD582), while referring to a catena of cases observed as under:
“7. The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. There is some confusion as to in what circumstances an advocate-commissioner is to be appointed in a civil suit. To answer this question, we have to understand the expression of elucidating any matter in dispute in Order 26, Rule 9 of CPC. There are several expressions in this regard. Some are under the impression that no advocate commissioner is to be appointed in suit for injunction. For example, the claim for injunction made by the plaintiff is based on the plea that there is only one way to his house and that he is being prevented by the defendant from using said way, any amount of evidence in this regard may not help the Court to render a correct finding on this aspect, as evidence in this regard would be available on the spot at the ground/field. So, a situation such as this would definitely fall within the expression of elucidating any matter in dispute to avoid adducing of much oral evidence by consuming time of Court and parties and ultimately with no possibility of practical approach for accurate determination of the lis. No doubt, before appointing an advocate commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. Court has to keep in mind therefrom to decide whether there is an actual necessity to appoint advocate commissioner to decide any real controversy between parties.
8. No doubt an Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.
9. There are circumstances in which, it is only a Commissioner inspecting the property promptly and recording timely assessment of what obtains relating to the property from threat of changing or obliterating the existing physical features lo destroy valuable evidence on ground, could alone assist courts to decide correctly. If such prompt actions are not taken, it may destroy the valuable rights of the parties.
10. In Bandaru Mutyalu Vs. Palli Appalaraju (2013 (5) ALD 376 = 2013 (6) ALT 26), it was held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared and the object of local investigation under Order XXVI, Rule 9 of the Code which cannot belittled for that conclusion placed reliance upon Sanjay, Son of Namdeo Khandare Vs. Saheb Rao Kachru Khandare, 2001 (4) CCC 416; Ponnusamy Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad.33, Mahendranath Panda Vs. Purnanada & Others, AIR 1988 Ori. 248; C.Veeramma v. C.Venkatachalam, 1958 ALT 792 = AIR 1959 AP 170, and Savitramma v. B.Changa Reddy, 1988 (1) ALT.
11. In J. Satyasri Rambabu Vs. A. Anasuya, 2005 (6) ALD 389, 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.
12. In Mallikarjuna Srinivasa Gupta Vs. K. Sheshirekha, 2006 (3) ALD 362, in which case, a suit was filed for declaration of title and an application was filed contending that the defendant therein encroached a portion of the site. The stand of the defendant therein was that he has not encroached any portion of the site as alleged by the plaintiff. In the circumstances, this Court held as follows: By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in Plot No.62. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein.
13. In Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others, 2010 (4) ALD 198, it was held that an Advocate Commissioner can be appointed in an injunction suit for local inspection of the suit site and to demarcate the suit schedule property with the help of the Surveyor.
14. In Shaik Zareena Kasam v. Patan Sadab Khan, 2011 (4) ALD 231, 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 was also held referring to Mallikarjuna Srinivasa Gupta and Varala Ramachandra Reddy (supra), that 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 COSES
15. In Donadulu Uma Devi v. Girika Katamaiah @ Basaiah, 2013 (2) ALD 86 = 2013 (1) ALT 548, it was held at para 12 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.
16……..
17. The Supreme Court in Gurunath Manohar Pavaskar & others vs. Nagesh Siddappa Navalgund and others, CDJ 2007 SC 1339, has held that the learned trial Judge may appoint an Advocate Commissioner for the purpose of taking measurement and demarcation of the disputed suit land.
18. The Supreme Court in Haryana Waqf Board supra, 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."
12. Undisputedly, in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. 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.
13. Even in the case on hand, the plaintiffs are claiming that they are the owners of the suit schedule property having purchased the same vide different sale deeds. In contra, the defendant contends that he is the owner of the suit schedule property and places reliance on title deeds, which are disputed by the plaintiffs that the survey number mentioned in the said title deeds do not belong to the suit schedule property. In such a case, the Court below, ought to have appointed an Advocate Commissioner as prayed by the plaintiffs. Mere recital of the documents available before it may not reveal the true facts. It would not be possible to determine the rights of the parties by mere looking into the sale deeds relied upon both the parties. As such, it would be essential to consider the request of the plaintiffs for appointment of Advocate Commissioner for the purpose mentioned in the application filed by them.
14. Article 227 deals with power of superintendence by the High Court over all Subordinate Court and Tribunals. The power of superintendence conferred upon the High Court by Article 227 is not confined to administrative superintendence only, but includes the power of judicial revision also even where no appeal or revision lies to the High Court under the ordinary law, rather power under this Article is wider than that of Article 226 in the sense that it is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction and such power can also be exercised suo motu.
15. It is a well settled principle that the High Court can exercise supervisory power over the subordinate Courts under Article 227 of Constitution of India, as held by the Apex Court in “State (N.C.T. Of Delhi) Vs. Navjot Sandhu@ Afsan Guru(2003 (6) SCC 641).
16. As per the law laid down by the Apex Court, supervisory jurisdiction under Article 227 of the Constitution is to be exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
17. In view of my foregoing discussion, I find that the order of the trial Court is erroneous as it has failed to exercise discretion properly and such finding is liable to be set aside by exercising power under Article 227 of the Constitution of India.
18. Accordingly, this civil revision petition is allowed and the order dated 02.02.2024 passed by the learned I Additional Senior Civil Judge, Kakinada in I.A.No.324 of 2021 in O.S.No.116 of 2016 is hereby set-aside.
Consequently, miscellaneous applications, pending, if any, shall also stand closed.
