Partly allowed

Katralapalli Vijaya Lakshmi v. Vignam Vidyalayam

Andhra Pradesh HC21 Dec 2023CRP/675/2019

Case brief

AI extract

What is this about?

Civil Revision Petition challenging rejection of application for Advocate Commissioner appointment. Court held noting physical features/measurements is not evidence gathering and directed appointment.

What did the court decide?

Order directed VI Additional Senior Civil Judge, Visakhapatnam, to appoint Advocate Commissioner to note physical features with measurements of suit schedule property.

Katralapalli Vijaya Lakshmi Vs Vignam Vidyalayam — Property and Title | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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THURSDAY ,THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

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CIVIL REVISION PETITION NO: 675 OF 2019

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Between:

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Katralapalli Vijaya Lakshmi, W/o. Trinadha Rao, Hindu, aged about 48 years, R/o. D. No. 13-31-11/1, Gedda Veedhi, Bheemunipatnam, Visakhapatnam District.

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...Petitioner(S)

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AND

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Vignam Vidyalayam, represented by its Correspondent, Vignan Vidyalayam, Kapuluppada Village, Thimmapuram, Bheemunipatnam Mandal, Visakhapatnam District.

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B. Prasada Rao,, S/o. Nageswara Rao, R/o. Satyanarayanapuram, Vijayawada, Krishna District, State of Andhra Pradesh. (2nd respondent is not a necessary party to the present C.R.P.)

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...Respondents

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ORDER:-

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The Civil Revision Petition is filed under Article 227 of

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the Constitution of India, challenging the order dated 23.11.2018 in I.A. No.1253 of 2015 in O.S. No.482 of 2015,

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on the file of the VI Additional Senior Civil Judge, Visakhapatnam, wherein the application filed by the petitioner under Or.XXVI Rule 9 of CPC, seeking appointment of an Advocate Commissioner was rejected.

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The brief facts of the case are that the petitioner herein is the 2^nd plaintiff in the suit. The suit was initially filed by the 1^st plaintiff for the relief of permanent injunction against the defendant and the plaintiff has also sought for interim injunction against the defendant/respondent. Subsequent to filing of the suit the 2^nd plaintiff purchased the land from the 1^st Plaintiff and got impleaded as 2^nd plaintiff in the suit. When the defendants were trying to trespass into the suit schedule land, the plaintiff sought for amendment of relief sought in the suit to that of mandatory injunction. The petitioner contends that when the suit was coming up for trial, the defendant in a high handed manner, trespassed and tried to encroach into the suit schedule land towards western and northern side. Therefore sought for appointment of Advocate Commissioner, to note down the physical features of the suit schedule property and also sought for a direction

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to direct him to inspect the property and take measurement with the help of Mandal Surveyor. The said application was dismissed by the learned Judge observing that when the plaintiffs are claiming for relief of mandatory injunction and it is for them to prove their case and to show the actual measurements before the Court, instead of that the petitioner has come forward with the present application. The trial Court for that reason dismissed the application filed by the petitioner. Hence, the present Civil Revision Petition.

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Heard, learned counsel for the petitioner and the respondents.

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The petitioner submits that as the defendants are trying to encroach the suit schedule land day by day, and in order to note down the physical features of the subject land alone, she has filed the present application seeking appointment of an Advocate Commissioner.

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The learned counsel for the petitioner relies on the decisions of the composite High Court for the State of Telengana and Andhra Pradesh, in the cases of Bandi Samuel & Another Vs. Medida Nageswara Rao¹ , and

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1 2016 LawSuit(Hyd) 510

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K. Dayanand & another Vs. P. Sampath Kumar² and Chukka Venkatadri and another Vs. Mallavarapu Mahalakshmamma and others³ .

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On the other hand, the learned counsel for the respondents, Sri A.S.C Bose, submits that if at all, if there is any violation of the interim injunctions granted by the Court, the only remedy available to the petitioner was filing an appropriate application under Or. 39 rule 2 (a) of CPC. He further submits that the present application is allowed, the same would amount to gathering of evidence.

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The learned trial Court while dismissing the application observed as under:

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“This conduct of the petitioner clearly shows that she has no idea about the plaint schedule property and so also the alleged encroachment by the respondent. Admittedly, no linear measurements shown in the plaint or in I.A. No.413 of 2006 or in the present petition regarding the property encroached by the respondent/defendant. When the plaintiffs are claiming relief of mandatory injunction, it is for them to prove their case and to show actual measurements before the Court and inturn they have to prove the same by adducing

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2 2015 (2) ALD 319

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3 2006 (3) ALD 87

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cogent evidence. But the petitioner failed to proceed with the matter and filed this application .”

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The petitioner has clearly stated in her affidavit in

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I.A. No. that she has filed suit for grant of permanent injunction against the defendant, and that the learned trial Court has granted interim injunction in favor of the petitioner. She has further stated that the defendant has violated order of interim injunction granted in favor of the petitioner, which led the petitioner to file an application seeking amendment of the relief sought in the suit to that of mandatory injunction. It is the contention of the petitioner that the defendant being an influential institution with its mighty force trespassed into the petitioner’s property encroaching towards western and northern side. She therefore sought appointment of Advocate Commissioner to note down the physical features of the suit schedule property. Having considered the rival submissions, this Court is of the view that the relief sought by the petitioner in the I.A. is only for an appointment of the Advocate Commissioner to note down the physical features of the property and take measurement with the help of a Mandal Surveyor. If an

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Advocate Commissioner is appointed to visit the suit schedule property and makes a note of physical features of the same by measurement and submits a report, the same will not amount to gathering of evidence.

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This Court in the case of K. Dayanand& another Vs P. Sampath Kumar⁴ , after referring to several other judgments of this Court and Apex Court, observed as under:

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“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 .”

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Having considered the rival submissions and by relying on the afore stated decision of this Court, this Court is

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4 (2015 (2) ALD 319

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of the view that appointment of an Advocate Commissioner to

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the extent of noting down the physical features with measurements, of the suit schedule property would not amount to gathering of evidence. Accordingly, the learned VI Additional Senior Civil Judge, Visakhapatnam, is directed to appoint an Advocate Commissioner to visit the plaint schedule property and take note down physical features with measurements of the suit schedule property.

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To that point, Civil Revision Petition is partly allowed, directing the learned VI Additional Senior Civil Judge, Visakhapatnam, to appoint an Advocate Commissioner to note down the physical features with measurements of the suit schedule property. There shall be no order as to costs.

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As a sequel, interlocutory applications, pending if any, shall stand closed.

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____________________________________ JUSTICE KIRANMAYEE MANDAVA

Date: 21.12.2023 MVK

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THE HON’BLE SMT. JUSTICE KIRANMAYEE MANDAVA

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