Dismissed

Smt. T.Amba Bai, v. Laxminarayana Gupta

Telangana HC2 Aug 2013CRP/2979/2013

Case brief

AI extract

What is this about?

In a civil revision, this Court dismissed the petition challenging the appointment of an Advocate Commissioner for local inspection in a property suit. The Court held that since evidence was concluded and local inspection was necessary for a just conclusion, the trial Court's discretion was not perverse under Article 227 of the Constitution.

What did the court decide?

The Civil Revision Petition is dismissed. No costs awarded to the petitioners.

Smt. T.Amba Bai, Vs Laxminarayana Gupta — Property and Title | Telangana HC (2013)

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THE HONOURABLE Ms. JUSTICE G. ROHINI

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CIVIL REVISION PETITION No.2979 OF 2013

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Date: 02.08.2013

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Between:

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Smt. T.Amba Bai, and five others

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…Petitioners

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And

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Laxminarayana Gupta, and five others

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…Respondents

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THE HONOURABLE Ms. JUSTICE G. ROHINI

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CIVIL REVISION PETITION No.2979 OF 2013

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ORDER:

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The revision petitioners are the defendants in O.S. No.7163 of 2004 on the file of the Court of the Principal Rent Controller- cum-XII Junior Civil Judge, City Civil Court, Hyderabad. By the order under revision the Court below appointed an Advocate Commissioner, as sought by the plaintiffs/respondents herein, for the purpose of making local inspection and for noting the physical features with measurements.

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Assailing the said order, it is vehemently contended by the learned counsel for the petitioners that the appointment of the Advocate-Commissioner in the facts and circumstances of the present case would amount to gathering evidence in favour of one of the parties and therefore the impugned order is liable to be set aside.

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I have heard the learned counsel for both the parties.

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It is to be noticed that this is a case where the evidence on behalf of both the parties has been concluded, and now the matter is coming up for arguments. The Court below at Para 11 of the order under revision, has recorded as under:

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“This Court perused the petition and counter averments and other documents available on record. This court observed that in the main suit the petitioner contending that while constructing their house they left 3.6 feet land towards east south corner in between the house of defendants and plaintiffs. The defendants while constructing their premises encroached 3.6 feet land left by the Petitioner/Plaintiff and claiming them as the owner of the said land. This court also observed that the main suit is filed for recovery of possession and mandatory injunction. This court observed that in the main suit both the parties are raising dispute with regarding to 3.6 feet land. It is no doubt true that the present petition is filed at the stage of arguments.”

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It is also observed by the Court below that even though both the parties led evidence, for the purpose of proper adjudication it is necessary for the Court to appoint an Advocate Commissioner for making local inspection so as to arrive at just conclusion.

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Though appointment of an Advocate Commissioner for noting the physical features in a suit for injunction is normally not allowed by the Courts, there is no absolute bar as such for appointment of

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Commissioner in appropriate cases. Order XXVI Rule 9 of C.P.C. itself says that in case the Court deems it necessary that local investigation is required for the purpose of eliciting any matter in dispute, an Advocate Commissioner can be appointed for the said purpose. Since the present suit is filed for declaration of title and recovery of possession, and moreover the evidence of both parties is over, no prejudice can be said to have been caused to the other side by appointing the advocate-commissioner as sought by the plaintiffs. The order under Revision shows that before passing the said order the Court below has considered all the relevant aspects and on application of mind to the facts and circumstances of the case thought it fit to appoint the advocate-commissioner as sought by the plaintiff. Such discretion exercised by the Court below cannot be held to be perverse or illegal warranting interference by this Court under Article 227 of the Constitution of India.

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Accordingly, the Civil Revision Petition is dismissed. No costs.

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Consequently, miscellaneous petitions, if any, pending in this revision petition, shall stand closed.

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______________ G. ROHINI, J

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Date: 02.08.2013 MVA

Smt. T.Amba Bai, v. Laxminarayana Gupta

Case brief

What is this about?

What did the court decide?

Smt. T.Amba Bai, v. Laxminarayana Gupta

Case brief

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What did the court decide?

What the court decided

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