Dismissed

Shaik Moulana v. Shaik Khadarvali

Andhra Pradesh HC14 Jul 2023CRP/1688/2023

Case brief

AI extract

What is this about?

High Court dismissed a civil revision petition challenging the dismissal of an application under Order 26 Rule 9 CPC. The court held that no advocate-commissioner was needed to ascertain the existence of an asbestos roof as it was admitted by the defendants and irrelevant to a title suit.

What did the court decide?

Civil Revision Petition No. 1688 of 2023 dismissed at the admission stage with no costs.

Shaik Moulana Vs Shaik Khadarvali — Property and Title | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH ::^AMARAVATI

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FRIDAY ,THE FOURTEENTH DAY OF JULY,s~~; ` TWO THOUSAND AND TWENTY THREE

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;•.r4

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PRESENT

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THE HONOURABLE SRI JUSTICE CHEEKATI^{MANAVENDRANATH ROY}

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CIVIL REVISION PETITION NO: 1688 OF 2023

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Petition under Article 227 of Constitution of India aggrieved by the^{order dated} 10.04.2023 in I.A.No.50 of 2023 in O.S.No.372 of 2019 on the file of the^{Court of the} Additional Junior Civil Judge, Ramachandrapuram, East Godavari District.

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Between:

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Shaik Moulana, S/o. Shaik Khadarvali, aged 37 years, R/o. Flat^No.202, Padmavathi Nilayam, Shilpa Nagar, Nagaram, Medchel District, Hyderabad.

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..Petitioner

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AND

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Shaik Khadarvali, S/o.Late Ahmmad Shariff, aged 63 years, R/o. Flat No.302, Naina Towers, Mothevari Thota, Eluru, West Godavari District.

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Sameerunnisa, D/o Khadarvali, aged 39 years, R/o. Flat No.303, Susheela Jewel, Opposite Old VT College, Jawahar Nagar, Sriharipuram, Visakhapatnam District.

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Shaik Shamiunnisa, W/o Asharaf Ali, aged 37 years, R/o. Flat No.303, Susheela Jewel, Opposite Old VT College, Jawahar Nagar, Sriharipuram, Visakhapatnam District.

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Shaik Haseena Begam, W/o late Abdul Sattar, Aged 75 years, Dr.No.30-3-68, AnisettivariSavaram, Ramachandrapuram, East Godavari District.

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...Respondents

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IA NO: 1 OF 2023

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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.372 of 2019, on the file of the Court of the Additional Junior Civil Judge, Ramachandrapuram, East Godavari District.

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Counsel for the Petitioner: SRI G SRI HARSHA

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Counsel for the Respondent Nos.1 to 4: NONE APPEARED

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The Court made the following Order:

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CMR, J. C.R.P. No.1688 of 2023

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THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

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Civil Revision Petition No.1688 of 2023

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ORDER:

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This Civil Revision Petition is directed against the order, dated 10.04.2023, passed in I.A.No.50 of 2023 in O.S.No.372 of 2019 on the file of the Additional Junior Civil Judge, Ramachandrapuram, whereby the petition filed under Order 26 Rule 9 CPC for appointment of an advocate-commissioner, was dismissed.

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Heard learned counsel for the petitioner. 3) The petitioner is the plaintiff in the Suit in O.S.No.372 of 2019 on the file of the Additional Junior Civil Judge, Ramachandrapuram. He has filed the said Suit for declaration of his title in respect of the plaint schedule property and for recovery of possession of the said house after evicting the 4th defendant from the said house. The trial in the Suit is commenced and when the Suit is coming up for further evidence of the plaintiff, he has filed the present petition under Order 26 Rule 9 CPC to appoint an advocate-commissioner to note the physical features of the property in question to ascertain whether any asbestos roof was laid by the petitioner on the top of the said house or not.

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The trial Court found that the def ants admitted that

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asbestos roofed shed is now laid on the roof of the said house and

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CMR, J. C.R.P. No.1688 of 2023

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as such, there is no need to appoint an advocate-commissioner to ascertain the said fact. So, absolutely the said order does not suffer from any legal infirmity. When the said fact is categorically admitted by the defendants, there is no need to appoint an advocate-commissioner to ascertain the said fact. Further, this Court is at loss to understand as to how the said fact of laying asbestos roof on the top of the said house is relevant to decide the controversy involved in the Suit, which is filed for declaration of the title of the said Suit. If at all, it is the case of the plaintiff that the defendants are making some alterations to the said house, he has to file a petition to restrain the defendants from changing the physical features of the said house. But, definitely, a petition under Order 26 Rule 9 CPC to appoint an advocate-commissioner, in such circumstances, is totally misconceived.

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Therefore, the Civil Revision Petition fails and it is dismissed

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at the admission stage. No costs.

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Consequently, miscellaneous applications, pending if any,

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shall also stand closed.

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SD/- N^NAGAMMA ASSISTANT^REGISTRAR

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//TRUE^COPY//

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SECTION^OFFICER

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To, 1. The^{Additional Junior Civil Judge, Ramachandrapuram, East Godavari} District One CC to^{Sri G Sri Harsha, Advocate [OPUC]}

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Three^{CD Copies}

sree

HIGH COURT

DATED: 14/07/2023

ORDER

CRP.No.1688 of 2023

DISMISSING THE C.R.P. AT THE ADMISSION STAGE

Shaik Moulana v. Shaik Khadarvali

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Shaik Moulana v. Shaik Khadarvali

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