APHC010038852023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3332]

(Special Original Jurisdiction)

MONDAY,THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NO: 388/2023 Between:

Gogireddy Madhusudhana Reddy ...PETITIONER AND Gasi Lakshmaiah ...RESPONDENT Counsel for the Petitioner: 1. DULLA SRINIVASA RAO Counsel for the Respondent:

1.

The Court made the following order:

The present Civil Revision Petition is filed by the petitioner being aggrieved by order dated 25.11.2022 in I.A.No.837/2022 in O.S.No.328/2016 on the file of the Court of the learned II Additional Junior Civil Judge, Guntur.

2. The petitioner herein is the plaintiff and the respondent is defendant. The petitioner/plaintiff filed suit vide O.S.No.328/2016 for permanent injunction. In the said suit, the petitioner/plaintiff filed I.A.No.837/2022 under Order XXVI Rule 9 of CPC, 1908 praying the Court to appoint an Advocate- Commissioner to visit the plaint schedule property and to note down the physical features of the plaint schedule property whether there is a house in the name of the petitioner/plaintiff or not, to note down the survey number, door number and assessment number of the house in the plaint schedule land with the assistance of Government Surveyor and to file report in that regard. After hearing both sides, the Court below dismissed the said application under its order dated 25.11.2022. Aggrieved thereby, the present revision has been filed.

3. Heard Sri Dulla Srinivasa Rao, learned counsel for the petitioner.

4. Learned counsel for petitioner in elaboration to what has been raised in the grounds of revision and contents of the affidavit in support of the interlocutory application submitted that, when the defendant disputed the fact of existence of the house in the plaint schedule property, in order to prove that there is a house existing in the plaint schedule property in the name of the petitioner/plaintiff, the petitioner/plaintiff filed I.A.No.837/2022 for appointment of Advocate Commissioner to visit the plaint schedule property and to note down the physical features of the plaint schedule property whether there is a house in the name of the petitioner/plaintiff or not, to note down the survey number, door number and assessment number of the house in the plaint schedule land with the assistance of Government Surveyor and to file a report. He further contended that, when there is serious dispute of identity of the property or boundaries appointment of an Advocate-Commissioner is necessary in order to resolve the same and an Advocate Commissioner can be appointed even in the suit for permanent injunction. He further contended that, the Court below dismissed the said application erroneously without taking into consideration the facts and circumstances of the case and the Court below failed to see the purport of Order 26 Rule 9 of CPC in a right perspective and the Court below also failed to see that no prejudice will be caused to the defendant if the said application is allowed. As such, prayed to consider the revision.

5. Perused the record.

6. The petitioner/plaintiff filed suit vide O.S.No.328/2016 on the file of the Court of the learned II Additional Junior Civil Judge, Guntur for grant of permanent injunction. In the said suit, the petitioner/plaintiff filed the present I.A.No.837/2022 for appointment of an Advocate-Commissioner. It is not in dispute that the said I.A. was filed at the stage of arguments. The reason mentioned by the petitioner/plaintiff is that the defendant disputed the fact of existence of the house in the plaint schedule property and in order to prove that there is a house existing in the plaint schedule property in the name of the petitioner/plaintiff, the petitioner/plaintiff filed I.A.No.837/2022 for appointment of Advocate Commissioner. The said application has been dismissed by the Court below on the ground that the petitioner/plaintiff