THE HON’BLE SMT JUSTICE K.SUJANA CIVIL REVISION PETITION No.693 OF 2024

O R D E R:

This Civil Revision Petition is filed by defendants against the order dated 31.10.2023 in I.A.No.232 of 2022 in I.A.No.260 of 2021 in O.S.No.3828 of 2021 on the file of the XIX Junior Civil Judge, City Civil Court at Hyderabad.

2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the trial Court

3. The facts of the case are that the plaintiffs/respondents filed the suit against the defendants for granting of Mandatory injunction and Perpetual injunction in respect of the suit schedule property i.e., Municipal bearing No.16-3-652, admeasuring 134 square yards situated at Chanchalguda, Hyderabad. It is stated that defendant No.1 purchased the suit schedule property from defendant No.2 and started illegal construction by encroaching government land and public pathway in three side of suit schedule property. As such, the plaintiffs filed the suit. Along with the suit, the plaintiffs filed I.A.No.232 of 2022 in I.A.No.260 of 2021 in O.S.No.3828 of 2021 seeking inspection of the suit schedule property. It is also stated that the trial Court passed Status Quo orders on 22.09.2021 in respect of the suit schedule property.

4. By the impugned order, the petition filed by the plaintiffs under Order XXXIX Rule 7 read with 151 of the Civil Procedure Code, was allowed by appointing advocate commissioner for inspection of the suit schedule property to note down the correct measurements of the constructed suit schedule properties and also to take photographs of the same.

5. Heard Sri Hassan Hussain Junaidi, learned counsel for the revision petitioners/defendants and Sri Syed Ibraheem Anwer, learned counsel for the respondents/plaintiffs. Perused the material available on record.

6. Learned counsel for the revision petitioners contended that the defendants stopped the construction over the suit schedule property and only ground floor slab was raised before filing of the suit. He further contended that though there are alternative remedies are available to the plaintiffs for gathering evidence, the plaintiffs filed the I.A.No.232 of 2022 only to collect evidence. He also contended that the trial Court erroneously allowed the petition by appointing the advocate commissioner and thereby causing great prejudice to the revision petitioners.

Hence, he prayed the Court to allow the revision petition.

7. On the other hand, learned counsel for the respondents contended that the advocate commissioner filed the report after visiting the suit schedule property. Hence, he prayed the Court to dismiss the revision petition.

8. For better appreciation of the facts of the case, it is apposite to extract Order XXXIX Rule 7 of CPC which read as under:

“7. Detention, preservation, inspection, etc, of subject-matter of suit.

(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit, -

(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or, as to which any question may arise therein;

(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule.”

9. A plain reading of the above would abundantly make it clear that the purpose of appointing an advocate commissioner is for collecting the facts. However, in due course of time, the same facts may be used as an evidence.

10. It is noteworthy that there is a status quo orders dated 22.09.2021 in respect of the suit schedule property and the revision pe