APHC010038852023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3332] 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 has not made any valid grounds for appointment of Advocate-Commissioner. Admittedly, in a suit for injunction, it is for the plaintiff to prove the schedule of his property by adducing his evidence and also possession of the property within scheduled boundaries. 7. However, the said suit was filed in the year 2016 and the I.A.No.837/2022 was filed in the year 2022 after lapse of six(06) years, that too at the stage of arguments. Ordinarily this Court would not have interfered with an order of appointing an Advocate commissioner but in the case at hand, parties have closed the evidence and when the matter was at the stage of arguments, the petitioner has come up with prayer for appointment of a commissioner. In view of the admitted fact that parties have already closed their evidence, acceding to the prayer for appointment of an Advocate commissioner at this belated stage would amount to permitting the petitioner to fill up lacunae in their evidence thus leading to a roving inquiry. A learned single judge of the Calcutta High Court in Satish Agarwal Vs Tirath Singh1 has held that when the matter awaits arguments, the prayer made by the defendants for local investigation, if allowed would amount to filling up lacunae in their evidence and such prayer should not be allowed. 8. In view of the above observations, when the matter was posted for arguments, the petitioner/plaintiff can as well produce evidence (documentary) in support of his claim and cannot pray the court below for appointment of Advocate-Commissioner, as the same amounts to gathering of evidence. Moreover the report of the Advocate-Commissioner is not a conclusive proof. Further, the petitioner/plaintiff has not given any valid reasons as to why the 1 1996 AIHC 1761 said I.A. was filed at a belated stage. As such, the court below has rightly dismissed the application under its order dated 25.11.2022. 9. Though there is no express bar in appointing an Advocate- Commissioner in suit for permanent injunction but each case has to be dealt independently by taking into consideration the facts of the case. In the present case, the contingencies that are required for appointment of the Advocate- Commissioner are not met with. Therefore, this Court does not find any illegality or impropriety in the order impugned and further no valid and justifiable grounds raised or urged in the present revision warranting the interference of this Court, as such this revision is liable to be dismissed. Accordingly, the civil revision petition is dismissed. No costs. Miscellaneous applications, pending if any, shall stand closed. ___________________________ JUSTICE RAVI CHEEMALAPATI BRS