The court retains the discretion to appoint an advocate commissioner for property identification in injection suits when significant disputes exist.

ORDER :

T. VINOD KUMAR, J.

1. The present Civil Revision Petition is preferred aggrieved by the order dated 23.01.2025 in I.A. No.948 of 2024 in I.A. No.851 of 2024 in O.S. No.48 of 2024 passed by the Principal Senior Civil Judge, Nalgonda.

2. The revision petitioners are the plaintiffs in the main suit filed vide O.S. No. 48 of 2024 under Order VII rule 1 and 3 r/w Section 26 of C.P.C.

3. The petitioners along with the suit filed interlocutory application under order XXXIX Rule 1 and 2 r/w Section 151 of C.P.C. vide I.A. No. 851 of 2024 for grant of injunction.

4. The respondents herein who are defendants in the main suit and also respondents in the I.A. No. 851 of 2024 have filed the underlying interlocutory application in the I.A. filed by the petitioners herein for grant of injunction, under order XXVI rule 9 r/w Section 151 of C.P.C for appointment of an advocate commissioner to note down the physical features of the Suit schedule property and for recording the extent of suit schedule property.

5. The court below considering the nature of relief sought for in the suit had partly allowed the underlying Interlocutory Application. Aggrieved by the same present revision is filed.

6. Heard Sri E. Srinivasa Rao, learned Counsel for the petitioners, and learned Counsel for the respondents and perused the record.

7. The Revision Petitioner’s herein contend that they had filed a suit vide O.S. No. 48 of 2014 on the file of Senior Civil Judge, Nalgonda, against the respondents herein for Declaration of Title and injunction in respect of Suit Schedule Property i.e. Open House Plot No. 84 in Ward No. 6, Block No. 4 inside residential Zone total admeasuring 4,44,44 Sq yds situated at Nagarjuna Nagar Colony, Nalgonda Town & District and filed an interlocutory application vide I.A. No. 851 of 2024in O.S.No. 48 of 2024 to issue ex parte temporary injunction order against the respondents herein.

8. The Petitioners contend that the respondents herein had filed the underlying Interlocutory application in the I.A. filed by the petitioners seeking grant of exparte injunction, for appointment of an Advocate Commissioner to note down the physical features of the Suit Schedule Property and for the purpose of recording the extent of Suit Schedule property namely existing constructions, compound wall, to verify and record electricity connection details and tap water connection details, bore well observation, to verify and record the permission given by Nalgonda Municipality etc. in connection with the Suit Property.

9. The Petitioners contend that they have filed their Counter in I.A. No. 948 of 2024 opposing the prayer for the appointment of an Advocate Commissioner. The Petitioner further contends that the Court below erred in allowing the interlocutory application filed by the respondents hereinunder Order XXVI Rule 9 of CPC inasmuch as an Advocate Commissioner cannot be appointed for gathering evidence in support of one of the parties.

10. The Petitioners also contend that the Court below ought to have dismissed the Petition filed by Respondent No. 1 for appointment of Advocate Commissioner by directing them to adduce independent evidence in support of their case as the petitioners being dominus litus are bound to prove their case and it is not for the respondents herein to get a commissioner appointed in an injunction suit.

11. The petitioners further contend that the question of whether the plaintiffs are in possession of the suit schedule property as on the date of the suit is a matter to be adjudicated upon based on the oral and documentary evidence adduced by both parties, and hence, the appointment of an Advocate Commissioner was neither necessary nor warranted.

12. Per contra, Respondent No.1 contends that, upon a comparison betwe