APHC010128282025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3332] THURSDAY,THE TWENTY FOURTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NOs: 853 & 711 OF 2025 Between: 1. NALLAPARAJU LAKSHMI NARASIMHA RAJU, , S/O LATE SANYASI RAJU, HINDU, AGED ABOUT 69 YEARS, CULTIVATION, PERMANENT RESIDENT OF PEDAMAJJIPALEM VILLAGE, GANTYADA MANDAL, VIZIANAGARAM DISTRICT, TEMPORARILY RESIDING AT FLAT NO E-1, RAJ ENCLAVE APARTMENTS, BEHIND N.R.I HOSPITALS SEETHAMMADHARA, VISAKHAPATNAM ...PETITIONER AND 1. THE TAHASILDAR, THASAILDAR'S OFFICE, BONDAPALLI, VIZIANAGARAM DISTRICT 2. THE STATE, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTRATE COMPLEX, VIZIANAGARAM, VIZIANAGARAM DISTRICT. ...RESPONDENT(S): Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to allow this Revision petition by setting aside the Decree and Docket order dated 23-01-2025, passed in lA. No.804/2024 & 805/2024 in O.S.No.222/2016 on the file of Senior Civil Judge, Vizianagaram (Civil Judge (Senior Division), Vizianagaram), and pass such 2 IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant stay of all further proceedings of the suit in O.S No.222/2016 on the file of Senior Civil Judge, Vizianagaram and pass such Counsel for the Petitioner: 1. RAYAPROLU SRIKANTH Counsel for the Respondent(S): 1. GP FOR ARBITRATION The Court made the following: COMMON ORDER: C.R.P.No.853 of 2025 is filed impugning the proceedings passed in I.A.No.804 of 2024 in O.S.No.222 of 2016 on the file of Senior Civil Judge, Vizianagaram. C.R.P.No.711 of 2025 is filed impugning the proceedings passed in I.A.No.805 of 2024 in O.S.No.222 of 2016 on the file of Senior Civil Judge, Vizianagaram. 2. As the reliefs sought in these Revision Petitions are one and the same, these revision petitions are heard together and being disposed of by this common order. 3. Petitioner is the plaintiff and the respondents are the defendants in suit filed for permanent injunction vide O.S.No.222 of 2016 to restrain the respondents from interfering with the peaceful possession of the petitioner’s suit schedule property. In the said suit, petitioner-plaintiff filed I.A.Nos.804 & 805 of 2024 under Order 26 Rule 9 read with Section 151 of CPC seeking appointment of an Advocate Commissioner to note down the physical features 3 and existing trees in the plaint schedule property, in the presence of both the parties and by restricting him from gathering any evidence and to reopen the suit for appointment of an Advocate Commissioner. To the said applications, the respondents filed a counter affidavit denying the averments and, inter alia, contending that the matter is coming up for arguments, and that the petitioner filed I.A.No.804 & 805 of 2024 only to delay the suit proceedings, and according to the evidence of D.W.1, there are no standing trees in the plaint schedule property, therefore, there is no necessity to appoint an Advocate Commissioner to establish this fact. The Trial Court, after considering the arguments of both sides and perusing the material on record, dismissed the said I.A. by its order dated 23.01.2025, on the ground that the appointment of an Advocate Commissioner to note down the physical features of the plaint schedule property would amount to collection of evidence. It held that it is the burden of the petitioner-plaintiff to prove his case based on his pleadings, and therefore, an Advocate Commissioner cannot be appointed for the purpose of collecting evidence to support the plaintiff’s case. Assailing the decree and docket order dated 23.01.2025 the present revision has been filed. 4. Heard Sri Rayaprolu Srikanth, learned counsel for the petitioner and Sri Kata Sambasiva Rao, learned Assistant Government Pleader for Arbitration for the respondents. 5. Learned counsel for the petitioner while reiterating the contents of the affidavit filed in support of the application vide I.A.Nos.804 & 805 of 2024 in O.S.No.222 of 2016 contended that the Court below failed to understand that, 4 to prove the fact of existence of trees in plaint schedule property and to disapprove the statement of D.W.1 with regard to non-existence of trees in the plaint schedule property, the said applications have been filed. The petitioner is claiming that he raised 40 teak trees for 10 ten years in the schedule scheduled property and the respondents are denying that there are trees in the suit schedule property. Pending suit, the trial Court granted status quo and the same is in force. He further submitted that the trial has been completed and the trial Court dismissed the application by observing that the plaintiff cannot gather any evidence except to prove that there are trees in existence in this suit schedule property. In fact, if such application is allowed, no prejudice will be caused to the respondents. The said Commissioner’s report would come in aid to the Court while disposing the suit. Learned counsel further submitted that he would restrict his relief to the extent of noting down the trees only and not to note down the physical features of the suit schedule property, as such, prayed to allow the revision. 6. On the other hand, learned counsel for the respondents contended that I.A.No.804 of 2024 has been filed at the fag end of the trial only to drag on the suit that too at the argument stage. The petitioner should stand on his own legs and he cannot gather any evidence by asking for appointment of an Advocate Commissioner. The trial Court has rightly dealt with the application and dismissed the same by giving cogent reasons. The petitioner has not raised any valid grounds warranting the interference of this Court and Civil 5 Revision Petition is devoid of merits and liable to be dismissed, accordingly, prayed to dismiss the revision. 7. In reply, learned counsel for the petitioner submitted that if such an application is filed during the course of trial, the said application would be treated premature and also be treated as gathering of evidence, but at this stage, they cannot dismiss the application on the ground that the plaintiff is trying to gather evidence, accordingly, prayed to allow the revision. 8. Perused the record and considered the submissions of both the learned Counsel. 9. Petitioner herein filed a suit in O.S.No.222 of 2016 for permanent injunction. Petitioner’s contention is that adjacent to his property, there is a land belonging to the Government wherein, they raised 40 teak trees and as the respondents/defendants disputed the existence of trees in their evidence, the petitioner filed applications to appoint an Advocate Commissioner to ascertain the existence of trees. 10. The petitioner is claiming that there are trees in the suit schedule property wherein the respondents are disputing the same. The petitioner has also filed photos which are marked as Exhibit A7 to show the existence of trees. An application under Order 26 Rule 9 has been filed after closure of trial during the argument stage. No prejudice will be caused if an Advocate Commissioner is appointed to verify whether there are trees in the existence or not in the plaint schedule property. Further, the report of the Advocate commissioner is not a conclusive proof to definitely uphold an aid while 6 deciding the suit and the respondents failed to show cogent reason in what way, allowing the said application would cause prejudice to them. Appointment of Commissioner to note down the existence of trees would not amount to gathering of evidence. However, as the petitioner has restricted his relief to the extent of noting down the existence or not of trees in the suit schedule property, to that extent, the Civil Revision Petition can be allowed. 11. Accordingly, the Civil Revision Petitions are allowed. Consequently, I.A.Nos.804 & 805 of 2024 in O.S.No.222 of 2016 are allowed for appointment of an Advocate Commissioner for noting down existence of trees. The trial Court is directed to appoint an Advocate Commissioner for noting down the existence or not of teak trees in the suit schedule property. The trial Court shall fix terms that would generally be fixed while appointing Advocate Commissioner such as fees, requirement of issuance of prior notice of visit apart from fixing a reasonable time for filing report. There shall be no order as to costs. As a sequel, miscellaneous applications, pending if any, shall stand closed. _____________________________ JUSTICE RAVI CHEEMALAPATI Date: 24th July, 2025 RKS