1 APHC010078062023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3332] MONDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NO: 364 of 2023 Between: Bonthu Veera Venkata Satya Tataji Prasad, ...PETITIONER AND M/ S Kadiayala Constructions and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. P RAJESH BABU Counsel for the Respondent(S): 1. N SIVA REDDY The Court made the following order: The present civil revision petition is filed by the petitioner being aggrieved by orders dated 23.01.2023 in I.A.No.881 of 2016 in O.S.No.145/2014 on the file of the Court of the learned Family Court Cum IX Additional District and Sessions Judge, East Godavari, Rajamahendravaram. 2. The petitioner is the plaintiff and the respondents are the defendants. The petitioner filed a suit vide O.S.No.145/2014 for recovery of money and for a preliminary decree for partition of the plaint ‘B’ schedule. In the said suit, the 2 plaintiff filed I.A.No.881/2016 under Order XXVI Rule 9 to appoint an advocate commissioner to note down the deficiencies in the constructions of Soumya Rayal Apartments bearing Door No.74-8-1, Prakash Nagar, Rajamahendravaram and to assess the value of the said deficiencies and to note down other required information as available in the premises as pointed out by the parties by taking assistance of a competent civil engineer. The said application is dismissed on 23.01.2023 on the ground that appointing an advocate commissioner is nothing but fishing out information and collection of evidence and the same is not permissible. Aggrieved by the said order, the present civil revision petition is filed. 3. Heard Sri P.Rajesh Babu, learned counsel for the petitioner and Sri N.Siva Reddy, learned counsel for the respondents. 4. Learned counsel for the petitioner in elaboration to what has been stated in the grounds of the revision would contend that the petitioner being site owner entered into development agreement with the defendant nos.1 to 3 who are the builders. He further submitted that, the builders have not kept their promise under the agreement and left the construction with several deficiencies like plastering, skirting, ceiling, etc., and also no lift room, generator, electrical panel room and no landscaping were provided as per the specifications. He further submitted that, for the negligent act of the defendants 1 to 3, the plaintiff/petitioner faced humiliation and got blamed by the other flat owners, as such he filed a suit vide O.S.No.145/2014. In the said suit, the defendants filed written statement contending that there are no deficiencies in the construction and that they have 3 completed the construction of the apartment. Therefore, in order to test the veracity in the allegations, the plaintiff/petitioner filed I.A.No.881 of 2016 for appointment of Advocate Commissioner, but the court below has erroneously dismissed the said application on the ground of collection of evidence. He further submitted that, the court below has failed to appreciate the fact that, no prejudice will be caused to the defendants, if an advocate commissioner is appointed to note down the deficiencies and in fact it would be an aid to the court below for better adjudication of the case. As such prayed allow the present revision petition. 5. Learned counsel for the respondents contended that, the court below has rightly dismissed the said application since the appointment of Advocate commissioner is nothing but collection of evidence, moreover, considering the said application after lapse of 2 years does not arise, particularly when the matter is coming up for defendants’ evidence. Therefore, the petitioner has not raised any grounds warranting the interference of this Court and the civil revision petition is liable to be dismissed. 6. Perused the record and considered the submissions of both the learned counsel. 7. Since the defendant nos.1 to 3 have not completed the building as per the agreements entered among them and left with several deficiencies like internal plastering, skirting, ceiling, etc., the plaintiff being the site owner, filed the suit O.S.No.145/2014 for recovery of money towards compensation, damages and for preliminary decree for partition of the plaint ‘B’ schedule. When the defendants 4 have refuted the contention of the petitioner/plaintiff through written statement, that there are no deficiencies and the constructions were completed, the plaintiff filed I.A.No.881 of 2016 under Order XXVI Rule 9 for appointment of Advocate commissioner to note down whether there are any deficiencies or not and to assess the value of the said deficiencies, if any, and to note down other required information as available in the premises as pointed out by the parties by taking assistance of a competent civil engineer. The court below has dismissed the said application under its order dated 23.01.2023. Assailing the same, the present revision was preferred. As rightly contended by the learned counsel for the petitioner, no prejudice will be caused to the defendants, if an advocate commissioner is appointed to note down the deficiencies and without appreciating the said fact, the court below has erroneously dismissed the said application on the ground that it amounts to collection of evidence. The deficiencies in the executed work can only be pointed out by physically inspecting them by an Advocate Commissioner rather than letting in oral evidence. Since the defendants denied the deficiencies in the work done by the petitioner in their written statement, the petitioner filed the application for appointment of Advocate commissioner and filing petition after two years of filing the suit cannot be a ground for dismissal. This Court was of the view that, though the report of the Advocate Commissioner is not a conclusive proof, it would be definitely helpful for better adjudication of the case. In view of the said circumstances, this Court is inclined to allow the present revision petition. 5 Accordingly, the civil revision petition is allowed and the order dated 23.01.2023 in I.A.No.881 of 2016 is hereby set aside, consequently I.A.No.881 of 2016 is allowed and the court below is directed to appoint an Advocate Commissioner as prayed for. No costs. Miscellaneous applications, pending if any, shall stand closed. ___________________________ JUSTICE RAVI CHEEMALAPATI BRS