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2019 Supreme(AP) 66
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
D.V.S.S. Somayajulu, J.
Selvaraju Dhanasekhar - Appellants
Vs.
Viswanadha Venkata Yegneswara Sastry and Ors. - Respondents
CRP No. 1838 of 2017
Decided On : 06-06-2019
For the Appellant : S. Subba Reddy
For the Respondents: E.V.V.S. Ravi Kumar
Headnote:
Civil Procedure Code, 1973 – Order 26 – Questioning of order passed by II Additional Junior Civil Judge – Suit filed for injunction there is no bar or prohibition against appointment of Advocate Commissioner – Contention that Single Judges of this Court in all cases cited and also Supreme Court of India have held that appointment of Advocate Commissioner is permissible while deciding suit for injunction – Lower Court committed error in dismissing application – Whether Advocate Commissioner should be appointed to note down physical features – Whether Court rightly or wrongly decided application – Held, Lower Court not commit any error in passing impugned order – Comparison of photographs is not local investigation that is contemplated by Order 26 of CPC – Local investigation mean investigation for ascertaining of certain facts on ground because the Court not physically go there and note down actual physical features – There is serious dispute about identity of property, dispute about boundaries or about relevant survey numbers in which property situated – Matter proved even without appointment of an Advocate Commissioner existence of hut, construction of hut can proved by defendant – Revision Petition dismissed (Paras 12 to 14)
Facts of the case:
Questioning of order passed by II Additional Junior Civil Judge – Suit filed for injunction there is no bar or prohibition against appointment of Advocate Commissioner – Contention that Single Judges of this Court in all cases cited and also Supreme Court of India have held that appointment of Advocate Commissioner is permissible while deciding suit for injunction – Lower Court committed error in dismissing application – Whether Advocate Commissioner should be appointed to note down physical features – Whether Court rightly or wrongly decided application.
Findings of the court:
Lower Court not commit any error in passing impugned order – Comparison of photographs is not local investigation that is contemplated by Order 26 of CPC – Local investigation mean investigation for ascertaining of certain facts on ground because the Court not physically go there and note down actual physical features – There is serious dispute about identity of property, dispute about boundaries or about relevant survey numbers in which property situated – Matter proved even without appointment of an Advocate Commissioner existence of hut, construction of hut can proved by defendant.
Result: Revision petition dismissed
ORDER :
D.V.S.S. Somayajulu, J.
1. This civil revision petition is filed questioning the order dated 21.2.2017 passed in IA No. 2088 of 2016 in OS No. 141 of 2015, by the learned II Additional Junior Civil Judge, Kakinada.
2. The suit in OS No. 141 of 2015 is filed for a permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment of the schedule property. In the said suit, during the progress of the trial IA No. 2088 of 2016 was filed for appointment of an Advocate Commissioner. The said application was dismissed. Questioning the same, the present civil revision petition has been filed.
3. This Court has heard Sri S. Subba Reddy, learned Counsel for the revision petitioner and Sri E.V. V.S. Ravi Kumar, learned Counsel for the respondents.
4. Learned Counsel for the petitioner argued the matter with his usual passion and submitted the following case law:
(1) Smt. A. Laxmamma v. Smt. A. Venkatamma, 2016 (6) ALT 795
(2) Velaga Narayana and others v. Bommakanti Srinivas and others, 2014 (3) ALD 605 : 2014 (4) ALT 152
(3) Nambada Varaha Narasimhulu v. Karanam Dalamma and others, 2014 (4) ALD 610 : 2014 (6) ALT 94
(4) Haryana Waqf Board v. Shanti Sarup and others, (2008) 8 SCC 671
(5) K. Dayanand v. P. Sampath Kumar, 2015 (2) ALD 319 : 2015 (4) ALT 560 and finally,
(6) Bandaru Mutyalu and another v. Palli Appalaraju, 2013 (5) ALD 376 : 2013 (6) ALT 26.
5. The argument of the learned Counsel for the petitioner is that although the suit is filed for an injunction there is no bar or prohibition against the appointment of an Advocate Commissioner. It is his contention that the learned Single Judges of this Court in all the cases cited and also the Hon'ble Supreme Court of India have held that the appointment of an Advocate Commissioner is permissible while deciding a suit for injunction. He submits that in view of the peculiar facts and circumstances of this case the appointment of an Advocate Commissioner to note down the physical features of the property is necessary and that therefore the appointment of an Advocate Commissioner is needed in this case. He submits that the lower Court committed an error in dismissing the application. It is his contention that the present civil revision petition should be allowed and an Advocate Commissioner should be appointed to visit the site and to note down the physical features and not for visiting the site and comparing the photographs.
6. In response to this, learned Counsel for the respondents submits that while that there is no bar for the appointment of an Advocate Commissioner in a suit for injunction as per the settled law, this Court should see the facts and circumstances of the decided cases and the present case in order to come to a conclusion whether the appointment of Advocate Commissioner is actually required or not. Learned Counsel submits that a judgment is an authority for what it decides only. He also submits that facts of the judgment have to be considered very carefully before the same is treated as a precedent to apply to the other cases. Learned Counsel submits that even one single fact in the decided case can make a difference. In addition, he submits that the prayers made in the present case are for appointment of an Advocate Commissioner to "compare the photographs" that are filed along with the plaint and also to "note down the physical features of the plaint schedule property". The learned Counsel submits that this amounts to clear gathering of evidence.
7. This Court after hearing both the Counsel notices that the application to appoint an Advocate Commissioner is filed during the examination of the witnesses i.e., during the oral evidence. According to the averments in the petition the affidavit is filed seeking appointment of an Advocate Commissioner because PW1 (1st plaintiff) denied the photographs, which were confronted to him. A statement is made in the affidavit that PW1 in order to avoid the admission stated that the p
