IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWELFTH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition Nos.2906 and 3083 of 2011 C.R.P.No.2906 of 2011 Between: Sarojini Devi .. Petitioner AND Dr. N. Vijay Kumar and another .. Respondents C.R.P.No.3083 of 2011 Between: Sarojini Devi .. Petitioner AND Dr. N. Vijay Kumar and another .. Respondents COMMON ORDER: These two Civil Revision Petitions arise out of the interlocutory orders passed by the Junior Civil Judge, Jadcherla, on 25-02-2010 in O.S.No.93 of 2009. I.A.No.6 of 2010 was filed by the plaintiff for appointment of an Advocate Commissioner for inspection of the suit property and noting down the physical features of the said property/ABCD area out of 700 square yards in Sy.No.260 of Amisthapur village, Bhoothpur Mandal. The plaintiff suing for a permanent injunction filed some photographs said to be showing the pits dug by the defendants after the grant of orders of status quo and indicating the raising of pillars in the said pits. The defendants opposed the request contending that in the suit for mere injunction the plaintiff without giving any measurements of his property cannot have the luxury of the appointment of an Advocate Commissioner and non- identification of the property should lead to rejection of the request. The trial Court passed the impugned order involved in C.R.P.No.2906 of 2011 opining with reference to the decision reported in Arredla Ram Reddy and others v. Arredla Alivelamma (2004 (5) ALD 388) that an Advocate Commissioner in a suit for permanent injunction cannot be appointed to note the physical features to be used for establishing the possession of the plaintiff. The trial Court felt that the property claimed is unidentifiable with no measurements or identification marks being given by the plaintiff and hence, even if the commissioner is appointed, he cannot identify the property in view of lack of material information from the plaintiff. The likelihood of plaintiff showing the property favourable to him will prejudice the case of the defendants, which is impermissible and no commissioner can be appointed for collection of evidence. Hence, the trial Court dismissed the petition without costs. In I.A.No.5 of 2010 in I.A.No.577 of 2009, the plaintiff sought for a direction to the defendants to remove the pillars raised after service of status quo order and the defendants denied the allegations again claiming the suit property to be unidentifiable. They contended that no orders for removal of pillars can be asked in the suit for mere injunction. The trial Court felt, after going through the rival contentions, that if there were any violation of the orders of the Court and any constructions were made by the defendants in such violation, the same can be considered during trial and necessary orders for removal can be passed at the end of the trial. Opining that the main relief in the suit cannot be granted by way of interim relief, the trial Court dismissed the petition without costs, which order is the subject of C.R.P.No.3083 of 2011. Heard Sri M. Damodar Reddy, learned counsel for the revision petitioner and Sri K. Venkatesh Gupta, learned counsel for the respondents-defendants. The points for consideration in these two revision petitions are whether an interlocutory direction to remove the pillars allegedly constructed in violation of the status quo orders could have been passed and whether it is just and necessary to appoint an Advocate Commissioner for the purpose claimed by the plaintiff? Insofar as the removal of pillars alleged to have been raised subsequent to the orders of status quo granted by the trial Court in the suit is concerned, the identity of the suit schedule property itself is the primary question in controversy in the suit before deciding which the location of the alleged pillars cannot be considered to be in the property, which is the subject matter of the suit. The plaintiff herself came up with a request in I.A.No.6 of 2010 in O.S.No.93 of 2009 for appointment of an Advocate Commissioner for noting the physical features of the suit locality obviously for the purpose of identification of the property in dispute and the trial Court cannot be considered wrong if it concluded that it is premature to consider any interim mandatory relief of removal of pillars before any evidence was placed on record by both the parties. As any violation of the orders of status quo could not have been concluded by the trial Court on such material and under such circumstances, at this stage, the trial Court relegating the question to be decided during trial cannot be considered inappropriate or unjust and the said order in I.A.No.5 of 2010 cannot, therefore, be interfered with. Insofar as the question of appointment of an Advocate Commissioner to note the physical features is concerned, the General Power of Attorney relied on by the plaintiff describes the suit schedule property to be 700 square yards in Sy.No.260 within the specified boundaries. The learned counsel for the plaintiff referred to the plaint sketch, which in his opinion, is suffice to identify the property on land. Sri K. Venkatesh Gupta, learned counsel for the respondents reiterated the contentions raised before the trial Court about the unidentifiability of the suit schedule property and consequent unjustness in allowing any collection of evidence through a Commissioner. The suit being one for permanent injunction in respect of ABCD area of the plaint sketch, out of 700 square yards said to have been purchased by the plaintiff and to be owned and possessed by the plaintiff in Sy.No.260, the parties have to necessarily establish their respective claims through appropriate oral and documentary evidence in this regard. The photographs filed by the plaintiff are claimed by her to be relating to pits dug in the disputed property in which pillars were raised, which allegations were denied by the defendants. As such, attempts through an impartial third party to locate the disputed property and to have the physical features in the property placed on record at the earliest opportunity will be in the interests of justice and it is on the facts and circumstances of the case before this Court in Arredla Ram Reddy and others v. Arredla Alivelamma (2004 (5) ALD 388), appointment of a commissioner was considered not proper or permissible, but the decision is no authority for any proposition that no commissioner can ever be appointed in a suit for permanent injunction. Sri K. Venkatesh Gupta, learned counsel submitted that if a Commissioner were to be appointed, he may be requested to identify 700 square yards of land in Sy.No.260 covered by the General Power of Attorney relied on by the plaintiff, apart from noting the physical features and the Commissioner can be directed to answer such a request if the defendants were to file a work memo requesting for such identification. As it is the plaintiff, who desires to have such physical features placed on record without making such a request at the time of filing of the suit itself, the plaintiff can be directed to bear the expenses of the commission irrespective of the result of the suit. The order in I.A.No.6 of 2010 has to be interfered with accordingly. Therefore, C.R.P.No.3083 of 2011 is dismissed without costs and C.R.P.No.2906 of 2011 is allowed without costs and the order of the Junior Civil Judge, Jadcherla in I.A.No.6 of 2010 in O.S.No.93 of 2009 dated 25-02-2010 is set aside and the said I.A.No.6 of 2010 is allowed directing the trial Court to appoint an Advocate Commissioner for the purpose specified in the petition. The fee of the Advocate Commissioner shall be fixed by the trial Court and both parties shall appear before the Advocate Commissioner at the time of execution of warrant. The Advocate Commissioner shall give notice to both parties to appear before him at the time of the execution of the warrant. The parties are at liberty to file work memos before the Advocate Commissioner, which shall be answered by him and more specifically, if the defendants make a request for identification of 700 square yards claimed by the plaintiff including ABCD site of the plaint sketch/the suit schedule property, the Advocate Commissioner shall answer such a request, of course, giving a reasonable opportunity to the plaintiff also to indicate the property claimed by the plaintiff. _____________________ G. BHAVANI PRASAD, J Date: 12-08-2011 Ksn