THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA CIVIL REVISION PETITION No.1511 OF 2021

ORDER:

Heard Sri Ravi Teja, learned counsel representing Sri A.Veera Swamy, learned counsel for the petitioner and Sri V.V.Ramakrishna, learned counsel representing Sri Ch.Sai Gangadhar, learned counsel for the respondents.

2. The present Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order of dismissal dated 03.08.2021 in I.A.No.118 of 2021 in I.A.No.47 of 2021 in O.S.No.314 of 2021, on the file of the Additional Judicial First Class Magistrate Special Mobile Court-cum-II Additional Junior Civil Judge, Sangareddy, rejecting the petitioner’s request for appointment of Advocate Commissioner for the limited purpose of noting down the physical features of the suit schedule property in I.A.No.118 of 2021.

3. Aggrieved by the same, the present petition is filed by the petitioner/plaintiff on the following grounds contending that the learned Trial Court erred in considering the application for appointment of Advocate Commissioner for limited purpose of noting down the physical features of the suit schedule property which is warranted. Further, the learned Trial Court was influenced by referring to the filing of the earlier suit O.S.No.319 of 2013 on the file of the Principal Senior Civil Judge at Sangareddy and erred in missing the crucial aspect with regard to the circumstances warranting filing of the present suit for injunction against the respondents herein and filing the present application I.A.No.118 of 2021 which it ought to have seen that as a fresh cause of action arose on 01.03.2021, when the respondent and their henchmen tried to interfere with his possession, much subsequent to the earlier suit and that it is not advisable to the petitioner/plaintiff to implead fresh parties or amend the suit keeping in view of the fresh cause of action.

4. It is further contended that the order passed by the trial Court suffers from non-application of mind and pleased to hold that the prayer herein is to note down the physical features of the suit schedule property and such a request cannot be construed as fishing out information, as such when it is for a limited purpose of noting down the physical features of the suit schedule property the appointment of Advocate Commissioner cannot be denied as held by this Court and no prejudice would be caused, if an Advocate Commissioner is appointed for the said limited purpose.

5. The learned trial Court considered that the petitioner not being in possession of the said property cannot seek relief of appointment of Advocate Commissioner, though admittedly the suit itself was filed by the petitioner/ plaintiff for relief of perpetual injunction against respondents/defendants and their henchmen, employees or anybody restraining them from interfering with the case and peaceful possession of the petitioner/plaintiff over the suit schedule property. Though, the present suit itself is only for the purpose of bare perpetual injunction, the question arises that whether the Advocate Commissioner can be appointed in such suit where the relief sought is only for the bare perpetual injunction.

6. Learned counsel for the petitioner contended that the application filed by the petitioner is only for the purpose of noting down the physical features of said property but not for trespassing into the property of the respondents/ defendants.

7. Learned counsel for the respondents contended that the petitioners were never been in the possession and that the very suit itself was filed with all false allegations and averments and that earlier O.S.No.319 of 2013 was filed on the file of Hon’ble Senior Civil Judge at Sangareddy for declaration-cum- cancellation document i.e., agreement of sale-cum-General Power of Attorney (for short GPA) and sale deeds and perpetual injunction and the said suit was dismissed for default and petition for restoration vide I.A.No.214 is pending. It is also con