Dismissed

Smt. Suchitra Dhagat v. Mrs. G. Sumanlata

Telangana HC17 Mar 2023CRP/2510/2022

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court dismissed the application against the Trial Court's refusal to appoint an Advocate Commissioner. The Court upheld the Trial Court's decision that appointing a commissioner for inspecting a demolished wall did not amount to collection of evidence, as the demolition itself was the subject of the suit.

What did the court decide?

The civil revision petition was dismissed without costs.

Smt. Suchitra Dhagat Vs Mrs. G. Sumanlata — Property and Title | Telangana HC (2023)

¶1

[^2s86 ]

¶2

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶3

FRIDAY, THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY THREE

¶4

PRESENT

¶5

THE HONOURABLE SRI JUSTICE P NAVEEN RAO

¶6

cIVIL REVISION PETITION NO: 2510 0F 2022

¶7

Petition under Article 227 of the Constitution of lndia, aggrieved by the orders Dt.28-09.2022 passed in l.A.No. 810 of 2022 in O.S.No. 2166 of 2018 on the file of the learned lX Junior Civil Judge City Civil Court, Hyderabad.

¶8

Between:

¶9

1 . Smt. Suchitra Dhagat, Wo Alok Kumar Dhagat D/o Sri RajendranathThakar aged 37 years, Occ. Household, Rl/o H.No. 6-51, Magadha Village, Gandipet, Hyderabad

¶10

Sri Omkar Thakar, S/o Sri Rajendranath Thakar aged about 33 years occpn Private service R/o H.No. 13-6-297, Kunwarjiguda, Kanivan, Hyderabad Both rep by their GPA Holder Sri Rajendranath Thakar

¶11

...PLAINTIFF

¶12

AND

¶13

Mrs. G. Sumanlata, W/o Late G. Uttam Singh aged 48 years occpn Household,

¶14

Ms. G. Neha Verma, D/o Late G. Uttam Singh aged 27 years occpn Household,

¶15

Mr. Kartik, S/o Late G. Uttam Singh aged 25 years occpn Business,

¶16

Mr. Sumit, S/o late G. Uttam Singh aged 22 years occpn Business

¶17

All Rl/o H.No. 13-6-24111, Karuvan, Hyderabad.

¶18

...DEFENDANTS

¶19

lA NO: 1 OF 2022

¶20

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. 2166 of 2018 on the file of the lX Junior civil^judge, city civil court at Hyderabad pending disposal of the present revision.

¶21

i I l

¶22

Counsel for the pr titioners: SRI. Kinhalkar Bhargavi

¶23

Counsel for the R, spondent No.1 to 4: BOTLA VENKATESW,CI:lA flAO

¶24

The Court made fl e following: ORDER

¶25

¶26

HON'BLE SRI JUSTICE P.NAVEEN RAO

¶27

CIVIL REVISION PETITION NO.2510 oF 2022

¶28

ORDER:

¶29

Heard learned counsel for petitioners Sri Kinhalkar Bhargavi and learned counsel for respondents Sri Botla Venkateswara Rao.

¶30

Plaintiff hled O S No. 2166 of 2018 on the file of the IX Junior Civil Judge, City Civil Court, Hyderabad praying to grant permanent injunction restraining defendants 1 to 4 and persons craiming through them from carrying out any kind of construction in property bearing H No. 13-6-241/1, Kunwarjiguda, Karwan, Hyderabad alnexing the wes[ern side of the plaintiffs, property; by way of mandatory injunction direct the defenda,ts 1 to 4 jointly ar-rd severally construct the wall demolished by defendants on western side of the plaintiffs, properly bearing H No. 13-6-241/1, Kunwarjiguda, Karwan, Hyderabad; and consequently direct the defendants 1 to 4 to jointly and severally pay the plaintiffs an amount ot Rs.2,26,726/- along with future interest @ 24 % per annum towards damages for the reconstruction of the wall and the room demolished by defendants I to 4.

¶31

In the said suit, plaintiffs hled I.A. No. 81O of 2022 ttnd,er XXXIX Rule 7 read with Section 1S1 CpC praying to appoint Advocate Commissioner for conducting local inspection of suit schedule properly to ascertain extent of encroachment by damaging the wa exclusively

¶32

¶33

belonging t,r p rtrtioncrs by neccssarily takrng pho-,r;zr-atirs lor thc purpose ol clu iclating subject n'rattcr of the suit z ;r:[ r:onscqucntlv submit a reF,ort .o the Court.

¶34

4 . On 1r- e consideration of the matter, the Tr zr C< urt by ordcr dated 28.9.iact2i dismissed the application. Th e^{'lrirLl (lo'rrt} observed that as the r:nti e subject matter of the suit is for dem:lj1-io r of the wall and alleged er :roachment by defendants, appointi-t1: tlte Advocate Commissionel t r ascertain the extent of damage' of tt.r: wall b1, u'ay of encroachmerll. r rade by the defendants is notbing brrt a nounting to collection of e,zic erLce:. The Trial Court furthcr observcd tlr,at as the cause of action in t-he ,uit arose on the alleged encroachment b r dr:fend:rnts by demolition of th r^,vall for determination of the exrent o[,:[anLage caused, an advocate con nLissioner cannot be appointed. Thc Tri,rl^()ourt further observed tl-rat it is for the plaintiffs to establish that th€ r:efcndants have encroached b 7 :.emolishing the wall and the extent tlxrreol . Aggrieve d thereby, this rev sron is preferred.

¶35

.{,1c, )r(ling to learned counsel for ltetitiorr::r, Trial Court misread the pr >vision in Order XXXIX Rule 7 CP(l and has not understood ,L.at the petitioners filed application seekin5; appointment of Advocate Co:rrr rissioner to ascertain extent of er r:ror.chme nt by damaging the vall exclusively belonging to petitioners, alrd the Trial Court ought to rave seen that the respondents damag,t: th: entire wall of the pelitioner l)roperty and as such it was just and :tt:cessary that an

¶36

¶37

l I

¶38

Advocate Commissioner be appointed to verify the same and appointment of Advocate Commissioner for the said purpose does not amount to collection of evidence.

¶39

Per contra, according to learned counsel for respondents what is pleaded by the petitioners is something different from what was sought in the application. From the pleadings in the plaint it is seen that plaintiffs alleged that defendants I to 4 are in occupation of the property on the western side of the property of the plaintiffs bearing H No. 13-6-241/1, Kunwarjiguda, Karwan, Hyderabad and continuing in possession of the same and alleges that defendants are not having any title. It is further averred that Sri Rajendranath rhakar and others rrled O.S. No. 177 of 2016 on the hle of V Junior Civil Judge, City Civil Court; Hyderabad seeking perpetual injunctiori against the same defendants and sought orders restraining them from interfering in possession, enjoyment and illegal demolition. of the boundary wa_ll oi the plaintiffs therein on western side and pending said suit defendants had demolished the wall of the plaintiffs therein on the western side, therefore plaintiffs therein rrled petition seeking punishment of the said defendants foru'iolation of the orders passed by the Court.

¶40

7 . Apart from the merits of the case, as per the averments in the plaint it is apparent that even by the time suit was instituted, plaintiffs alleged that defendants have occupied property on the western side of their house bearing H No. 13-6-241/1, Kunwarjiguda, Karwan,

¶41

Hyderabad :rr 1 u all rvas demolished. Whcth cr rlr'li nclrrnLs :rre in encroachmcnt o the plaintiffs propcrty and demolitiort ol u,iLll bclonging to plaintiffs. is a m atter which requires considdration.

¶42

U:rk s:;, it is established that defendants tL.,ve encroached into the lanrl br onging to pctitioners and on such encr:achment have demolished the.'all, the issue as to what extent the wall it,as demolished has no cons,:c1ur n:e. In other words, demolition is dire r:t.ly attributable to thc allesc'd e rcroachment is subject matter of the sllit Thc Trial Court righll1- oL ;e wed that in the facts of thc r:ase l,r'i r'Fct to appoint Advocate Comm s:rioner cannol be granLed. It ornnot :: stid that thc order of the Tr a Court is perverse. It is an ordr:r' m:rde on duc application of r ind after consideration of resppctive s,trbrnissions by assigning rcasor s in support of the decision. Tht: imprrg,necl order does not call for irLt,:r1 rrence.

¶43

l\c:cc^-dingly, the revision fails and is dismir;r;ed No costs. Pending misc:ella tcror-Ls petitions, if any, shall slan<l closr:,1.

¶44

Sd/- P. PAT)MANABHA REDDY ASSII;I'AN'I- REGISTRAR //TRUE COPY// $I:CTION OFFICER

¶45

To,

¶46

The lX Juni rr Civil Judge, City Civil Court, Hyderabad

¶47

One C(l to SIll. Kinhalkar Bhargavi, Advocate [OPUC]

¶48

One CO to ;Fil. BOTLA VENKATESWARA RAO, Advocat,: [OF,UC] 4. Two C[) 3o ries

NJB

HIGH COIJIIT

PNR,J

DATED:1 71J312023

,|..1.
I ' :r it"li3

ORDER

CRP.No.1l510 of 2022

DISMlSSIN G THE CRP

WITHOUT COSTS

r<br>T4
J,,/
'--tl[r;u

Smt. Suchitra Dhagat v. Mrs. G. Sumanlata

Case brief

What is this about?

What did the court decide?

Smt. Suchitra Dhagat v. Mrs. G. Sumanlata

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/s. Archana Exclusive Vs Anil Kumar Sanghi And 2 Others

The Regional Provident Fund Courter Employees Provident Fund Organization Vs K Rama Krishna

T.Shantha Kumar Singh Vs Sri P.Venkateswarlu

K.V.L Jaya Simha Vs B. Padmaja

Major Pankaj Rai Vs Krisnavani Rai

Mohammed Bilal Vs Mohammed Abdul Rahman