ORDER:

Heard Sri K. Venu Madhav, learned counsel appearing for the petitioner and Sri A. Chandra Shekar, learned counsel appearing for the respondents and perused the material available on the record.

2. This Civil Revision Petition is preferred by the petitioner aggrieved by the order dated 19.01.2023 (hereinafter refer to as the “the impugned order”) passed by the learned Junior Civil Judge-cum-Judicial Magistrate of First Class, Peddapalli in I.A.No.635 of 2022 in I.A.No.106 of 2022 in I.A.No.224 of 2017 in O.S.No.42 of 2017. By the impugned order, the learned Trial Court allowed the application filed by the Respondents under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 in appointing Sri S. Venkatesh as Advocate Commissioner to note down the physical features of the suit schedule property.

I. BRIEF FACTS:

3. The factual backdrop to the present revision is as follows:

a) The petitioner/plaintiff instituted a suit vide O.S.No. 42 of 2017 before the learned Trial Court seeking a decree of perpetual injunction in respect of suit schedule property bearing Sy.Nos.523/1 and 527/1, admeasuring 256.66 Sq. Yds., situated beside H.No. 1-1-92/E/1, Shanthi Nagar, Peddapalli. Along with the suit, the petitioner/plaintiff also filed I.A. No. 224 of 2017 seeking temporary injunction in respect of the suit schedule property. The learned Trial Court granted exparte ad interim injunction restraining the respondents/defendants from interfering with the peaceful possession and enjoyment of the petitioner/plaintiff over the suit schedule property, and same was extended until further orders.

b) Subsequently, the petitioner/plaintiff filed I.A. No.106 of 2022 under Order XXXIX Rule 2A seeking punishment of the respondents/defendants for violating the injunction order granted in I.A. No. 224 of 2017, alleging that the respondents/defendants constructed a shed in the suit schedule property. During the pendency of the above said application, the respondents/defendants filed another interlocutory application vide I.A.No.635 of 2022 seeking appointment of an Advocate Commissioner to record physical features of the suit schedule property. The learned Trial Court by the impugned order dated 19.01.2023 has allowed the application appointing Sri S. Venkatesh as Advocate Commissioner to note down the physical features of the suit schedule property. Aggrieved thereby, the petitioner/plaintiff has preferred the present Civil Revision Petition.

II. SUBMISSIONS OF THE PARTIES:

a) Submissions on behalf of the petitioner/plaintiff:

4. The learned counsel for the petitioner contended that since the suit instituted for perpetual injunction, the burden to establish possession over the suit schedule property lies upon the petitioner. In such a suit, the appointment of an Advocate Commissioner for recording the physical features of the property amounts to collection of evidence on behalf of the respondents through the Court, which is impermissible in law.

5. It is further contended that the learned Trial Court had already granted interim injunction in favour of the petitioner in I.A. No.224 of 2017 restraining the respondents from interfering with the suit schedule property. Despite the subsistence of the said injunction order, the respondents allegedly raised a shed over the suit schedule property in wilful violation thereof. In that backdrop, it is submitted that entertaining and allowing I.A. No.635 of 2022 seeking appointment of an Advocate Commissioner, while the contempt petition in I.A. No.106 of 2022 was pending consideration, amounts to abuse of process of law.

6. It is contended that appointment of an Advocate Commissioner in a suit for perpetual injunction is not warranted, as the dispute regarding possession has to be decided on the basis of oral and documentary evidence adduced by the parties. Hence, the impugned order appointing an Advocate Commissioner is liable to be set aside.

b) Submissions on behalf of the respondents/defendants:

7. The le