THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.720 of 2010 Date:29.10.2010 Between: Dr.C.R.P.S.Krishna and others. ……….. Petitioners/Defendants 1 & 2. And Cherukuri Seetharamamma and another. ……. Respondents/Plaintiffs. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.720 of 2010 ORDER: This civil revision petition is directed against the order dated 18.02.2010 passed in I.A.No.05 of 2009 in O.S.No.116 of 2009 on the file of II Additional Junior Civil Judge, Kothagudem allowing the I.A filed by the respondents herein for appointment of an Advocate Commissioner to inspect the suit schedule property. The learned counsel for the petitioner herein raised two grounds. The first ground is that impugned order is not supported by any reasons. The second ground is that in all earlier orders passed by the lower Court in the interlocutory applications, the contention of the respondents herein was not accepted. It is also his submission that an Advocate Commissioner cannot be appointed to gather the evidence. The learned counsel for the respondents on the other hand submitted that the eastern compound wall of the respondents and its foundation was damaged by the petitioners herein and that mere noting down the physical features will not amount to gathering the evidence. It is also his submission that the petitioners are at liberty to file work memo with the Advocate Commissioner and then to file objections and that there are no grounds to allow the revision. The only point that arise for consideration is whether there are any grounds to set aside the order of the lower Court. The respondents herein field an application under Order 26 Rule 9 read with Section 151 of CPC to appoint an Advocate Commissioner to inspect the petition schedule property, to note down the stages of the construction and to record the measurements of setback spaces on four sides of the petition schedule property at the ground floor level, upper floor elevations into the setback spaces, presence of cellar, its height and inside measurements and to inspect whether the construction already made by the respondents 1 & 2 is in conformity with the permission dated 16.3.2009 and revised permission dated 26.5.2009 issued by the Municipality, Kothagudem. It is also his case that the petitioners herein demolished the old structure and started digging foundation pits and excavating the gravel from the ground level and while doing so they have damaged the foundation ground of the compound towards eastern side of the respondents site, resulting in the fall of compound wall and cracks developed in the pillars of the building on eastern site. It is also their contention that though the respondents filed I.A.No.76 of 2009 i.e., similar application seeking appointment of an Advocate Commissioner at that time the petitioners had not obtained any permission and in the above circumstances, the said I.A was not pressed. But, subsequently, the petitioners, after obtaining permission for construction since started construction, there is change of circumstance. In view of the same, the subsequent petition is maintainable. It is the case of the petitioners herein that except the house wall of the respondents, there was no separate compound wall exists towards the east of the house of the respondents, and, therefore, the question of collapse of the eastern side compound wall does not arise. Perused the impugned order. Para Nos.6 & 7 of the impugned orders are as follows: “The contention of the parties as to the possession over the suit schedule property needs to be appreciated with reference to the evidence. Perused the material on record and the commissioner has to note down the stage of construction, age of construction and to record the measurements of set back spaces on four sides of the petition schedule property, presence of cellar, it’s height and inside measurements and to inspect (whether) the construction already made by the Respondents No.1 & 2. The petitioner’s main contention is that the respondents demolished her compound wall in the process of their construction. The petitioner took the same relief in her main suit and the respondents refused the same. The case is in initial stage and therefore, an Advocate Commissioner is appointed to note down the physical features of the suit schedule property and it is helpful to know the status of suit schedule property and it cannot be treated as steps to gather or collect the evidence of the case. Hence, Sri S.Ramana Reddy, Advocate is appointed as Advocate Commissioner to note down the physical features of the petition schedule property and the age of construction.” A reading of the above paragraphs gives an impression that the impugned order cannot be said to be not supported by any reasons. As far as the observations made in the other interlocutory applications i.e., in I.A.No.76 of 2009 dated 1.2.2010 filed for injunction order restraining the petitioners herein, from making further constructions and in I.A No.79 of 2009 seeking mandatory injunction to demolish the constructions already made are concerned though the observations have been made in the interlocutory orders, they cannot be said to be final and cannot bind the Court in passing orders in subsequent interlocutory applications and taking a different view. In the given facts and circumstances, as far as the point whether the allowing of the petition leads to collecting of any evidence by the Advocate Commissioner are concerned, I do not see any such appreciation. Mere noting down the physical features of the suit schedule property or even taking measurements and bringing the true facts to the notice of the Court cannot be construed as collecting evidence. The parties are at liberty to file work memos with the Advocate Commissioner and after filing the report by the Advocate Commissioner, they will have an opportunity to file objections to the said report. In the above circumstances, I do not see any illegality or irregularity or impropriety in the order passed by the lower Court, and, therefore, I hold that there are no merits in the civil revision petition. Accordingly, the Civil Revision Petition is dismissed. In the circumstances, no order as to costs. ______________________ Justice B.Chandra Kumar Date:29.10.2010 mrb