Allowed

Smt. Sriramula Vijaya Laxmi, v. Smt. Firdous Fathima

Telangana HC27 Aug 2010CRP/3110/2010

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition quashing the appointment of an advocate commissioner in a suit for permanent injunction. The Court held that such appointment was impermissible as it contradicted earlier interlocutory findings based on the same facts without any change of circumstances, constituting an abuse of process.

What did the court decide?

Appointment of advocate commissioner in I.A.No.560 of 2008 was quashed. Civil Revision Petition allowed without costs.

Smt. Sriramula Vijaya Laxmi, Vs Smt. Firdous Fathima — Property and Title | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD

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CIVIL REVISION PETITION No.3110 OF 2010

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Dated:27.08.2010

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Between:

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Smt. Sriramula Vijaya Laxmi .. Petitioner

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And

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Smt. Firdous Fathima .. Respondent

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ORDER:

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The Civil Revision Petition is directed against the order in I.A.No.560 of 2008 in O.S.No.187 of 2008 on the file of the Principal Junior Civil Judge’s Court, Sangareddy, dated 07.04.2010.

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The suit was filed for a permanent injunction against interference with possession of the suit schedule property described as an open plot admeasuring 300 square yards in Survey No.227 of Kalvakunta Village, bounded by Road on the North, land of Waheed on the South, M.A.Qhaliq (now at present abutting wall of the building) on the East and M.Satyanarayana (now at present abutting wall and mechanic garage) on the West. The suit is based on the claim of purchase of the suit property under document No.8724 of 1986, dated 30.10.1986, by the revision petitioner herein from the father of the respondent herein. There was a reference to an earlier suit in O.S.No.176 of 2008 between the parties wherein the sale and possession claimed by the revision petitioner herein were not disputed. The revision petitioner contended that under the guise of the interim injunction granted in O.S.No.176 of 2008, there was attempted interference with the possession of the suit property.

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The respondent herein resisted the suit contending that the revision petitioner by specifying incorrect boundaries desires to shift her plot towards East, though the sale of a plot with the specified measurements in favour of the revision petitioner is admitted. The respondent contended that she obtained an interim injunction in

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O.S.No.176 of 2008 when the revision petitioner was interfering with the construction being made in her own plot and as the identity of the suit plot and its location are in dispute and the revision petitioner is not in possession of the same, she is not entitled to the suit reliefs.

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The revision petitioner sought for an interim injunction pending the suit in I.A.No.539 of 2008 and the trial Court after enquiring into the same on merits and marking exhibits P1 to P12 and R1 to R9 during the enquiry, rendered its order on 03.07.2008 agreeing with the contentions of the revision petitioner and allowed the petition for interim injunction.

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Even during the pendency of the said petition for interim injunction, I.A.No.560 of 2008 was filed by the respondent herein for appointment of an advocate commissioner for local inspection to identify the plot purchased by the revision petitioner under Sale Deed No.8724 of 1986 and the map annexed thereto claiming that the father of the respondent herein divided the land of Ac.0.28 guntas in Survey No.227 into house sites and sold 300 square yards to the revision petitioner under a registered sale deed, which plot is 313 feet away from the P.W.D. road. It was claimed that the revision petitioner is wrongly claiming the respondent’s plot by showing wrong boundaries.

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This request for appointment of an advocate commissioner was opposed by the revision petitioner contending that the ambit and scope of the suit for perpetual injunction is settled lawful possession as on the date of the suit and any identification of the suit plot in relation to the registered sale deed is beyond the scope of the suit. Any fishing of evidence is impermissible through the instrumentality of an advocate commissioner and the ownership of the suit plot being admitted, apart from the admission of the purchase under the registered sale deed, the petition be dismissed with costs.

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The trial Court passed the impugned order in the said petition observing that dimensions of the plot sold under Document No.8724 of 1986 and the distance from P.W.D. road were clearly shown and there should not be any objection for identifying the suit schedule plot in relation to the sale deed and the annexed map. While agreeing that an advocate commissioner should not be appointed for fishing of evidence or deciding the possession of the parties, the trial Court noted that the interim injunction was granted primarily relying upon the possession of the revision petitioner over the suit plot basing on the copy of the sale deed which was admitted. The trial Court felt that the respondent herein is entitled for appointment of an advocate commissioner to know that the suit plot and the plot in the sale deed are one and the same and accordingly it appointed an advocate commissioner.

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The revision petitioner challenges the said order in this revision contending that the findings of the very same Court in I.A.No.539 of 2008 are sought to be reopened by the impugned order and when there is no boundary dispute between the parties, no advocate commissioner could have been appointed for identifying the property of the revision petitioner. The respondent could have asked for identification of the property allegedly gifted to her mother, but not the property of the revision petitioner, which is within well defined boundaries. Hence, the revision petitioner desired that the impugned order be reversed.

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Sri Prabhakar Sripada, learned counsel for the revision petitioner, and Sri P.Venkat Reddy, learned counsel for the respondent, are heard at length.

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The point for consideration is whether the appointment of an

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advocate commissioner for the purposes claimed by the respondent is just and legal?

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POINT:- O.S.No.187 of 2008 on the file of the Principal Junior Civil Judge’s Court, Sangareddy, for a permanent injunction is pending trial and admittedly the trial has not yet commenced. Pending the final determination of the suit, on merits, after both parties placing their oral and documentary evidence before the Court, the plea for an interim injunction in favour of the revision petitioner against the respondent was considered on merits in I.A.No.539 of 2008 in which exhibits marked include the sale deed and link documents in favour of the revision petitioner as well as the gift settlement deed and other documents in favour of the respondent. After carefully considering the rival contentions of the parties and the documents marked during the interlocutory enquiry, the trial Court observed in its order dated 03.07.2008 that the respondent has no claim over the plot sold to the revision petitioner under Ex.P1 and she admitted that the plot of the revision petitioner lies in between the plot of M.Satyanarayana and the respondent’s mother, while the respondent’s own plot is towards East of her mother’s plot. The trial Court noted that the plots of the revision petitioner and the respondent are not adjacent to each other on any side and in the light of the admissions of the respondent, the trial Court concluded that the revision petitioner proved prima facie the possession of her plot purchased under Ex.P1. The trial Court further concluded that in its considered opinion, the revision petitioner is entitled to protect her possession over the plot which is at a distance of 313 feet away from the P.W.D. road enclosed within the boundaries as North - road, South – land of Waheed, East – compound wall and building of M.A. Qhaliq and West – abutting wall and mechanic garage. The trial Court was also clear about its satisfaction that the revision petitioner could show her possession over the suit plot from

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the documents filed by her and the description of the plot as shown in the suit schedule property which is one and the same. The trial Court also observed that in the absence of a temporary injunction, there is every likelihood of the respondent encroaching into the land of the petitioner in view of the dispute as to the identity of the property raised by the respondent. The trial Court also observed that the respondent had obtained permission for construction of the house in her own plot and not in the suit plot.

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The grant of temporary injunction on such prima facie conclusions of the trial Court in the interlocutory adjudication admittedly became final in the absence of any challenge by the respondent herein to the said order. The order in I.A.No.539 of 2008 passed during the pendency of I.A.No.560 of 2008 did not indicate any scope for any ambiguity in the identity of the plot claimed by the revision petitioner in the suit on the strength of the sale deed obtained by her from the father of the respondent. However, when it came to the impugned order in which no further oral or documentary evidence has been placed before the Court by the parties, the trial Court tended to opine that the revision petitioner did not specify in the counter affidavit to this petition that she has claimed possession over the suit schedule plot, which was purchased under the sale deed No.8724 of 1986, which inference does not appear to be based on the totality of the pleadings vis-à-vis the contents of the sale deed. The trial Court observed that the learned counsel for the revision petitioner also refused to accept the location and boundaries of the suit schedule property as per the sale deed and the opinion of the trial Court that these circumstances support the contention of the learned counsel for the respondent that under the guise of the temporary injunction, the revision petitioner is trying to shift her plot’s location to the respondent’s plot is diametrically opposite to the conclusion arrived at

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by the trail Court in the petition for interim injunction. Similarly the trial Court, while admitting that the ambit and scope of a suit for perpetual injunction is very limited in which neither any collection of evidence nor any determination of the possession of the parties can be made through an advocate commissioner, still concluded that the respondent is entitled for the appointment of the advocate commissioner.

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As stated above, these inferences of the trial Court on which it proceeded to appoint an advocate commissioner are irreconcilably inconsistent with the conclusions in the petition for interim injunction. There was neither any change of circumstances after the earlier interlocutory adjudication nor any further oral or documentary evidence available to the Court to change its earlier opinion on merits. It is well settled right from Arjun Singh v. Mohindra Kumar and others^[1] that even interlocutory orders, which do not impinge upon the legal rights of the parties to the litigation, cannot be varied if applications were made for relief on the same basis after the same has once been disposed of, as it will be an abuse of the process of the Court. Interlocutory orders which are designed to ensure the just, smooth, orderly and expeditious disposal of the suit without deciding any matter in issue were also opined by the apex Court to be open for reconsideration only on the basis of different facts but not on the basis of identical facts. Repeated applications will be rejected on the same grounds on which the original application was rejected. It is evident from the decision of the apex court that it is only proof of fresh facts or change of circumstances that will permit a different conclusion or a different order even at an interlocutory stage and therefore the bar against repeated requests for relief on the same set of facts is based on public policy to prevent abuse of process of Court. The principles should squarely apply to the facts of the present case and the appointment of an advocate commissioner on diametrically opposite conclusions on the same set

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of facts and material on record cannot be permitted.

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However, it does not mean that after any fresh facts are brought to the notice of the Court on oral or documentary evidence to be placed before the court during trial, which would justify taking recourse to the appointment of an advocate commissioner for elucidation on any facts or circumstances which are relevant for a comprehensive and satisfactory determination of the questions in controversy between the parties to the suit, the parties are precluded from making such a request. It shall be open to either party or the Court to take recourse to the appointment of an advocate commissioner for any such permissible purposes at such a subsequent stage in the suit in accordance with law, if it is so required, but as of now, the respondent should fail in her request for the appointment of an advocate commissioner.

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Therefore, the Civil Revision Petition is allowed without costs subject to the above observations.

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___________________ G. BHAVANI PRASAD, J

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27.08.2010 KH

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[1] AIR 1964 S.C. 993

Smt. Sriramula Vijaya Laxmi, v. Smt. Firdous Fathima

Case brief

What is this about?

What did the court decide?

Smt. Sriramula Vijaya Laxmi, v. Smt. Firdous Fathima

Case brief

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