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 No.2279 of 2011 Between: Nellikonda Rajesh Goud .. Petitioner AND S. Dakshina Murthy and 2 others .. Respondents ORDER: The Civil Revision Petition is directed against the order dated 24-02-2011 in I.A.No.358 of 2010 in O.S.No.141 of 2007 on the file of the Court of Junior Civil Judge, Nagarkurnool. The plaintiff filed the petition for appointment of an Advocate Commissioner for the purpose of measuring the total plot of the plaintiff including the area which was occupied according to him in Sy.No.280 of Nagarkurnool and file his report. The plaintiff contended that he is in possession as owner of the 3715 square yards in Sy.No.280 of Nagarkurnool, which was purchased under a registered sale deed No.161/92. He claimed that the respondents, while constructing their house, encroached into 148 square yards of his site and in the suit for recovery of possession, the appointment of an Advocate Commissioner for the purpose of demarcation is essential in the interests of justice. The defendants-respondents did not file any counter and did not contest the application. Still the trial Court noted that evidence on behalf of the plaintiff was already adduced by examining PWs.1 to 3 and the evidence of the defendants was closed as they failed to produce any evidence in spite of affording ample opportunities. The respondents of course denied occupying any land of the petitioner in their written statement, but the trial Court found no justification for appointment of an Advocate Commissioner at the stage of arguments as the plaintiff has to establish his own case but not through an Advocate Commissioner. No collection of evidence through a commissioner is permissible and hence, the trial Court dismissed the application. The plaintiff is before this Court with this revision complaining that the request for appointment of an Advocate Commissioner was negatived without due appreciation of the facts and when the defendants did not raise any objection for the request. The question of collecting any evidence does not arise. Measurement by an Advocate Commissioner is absolutely essential and the judicial discretion ought to have been exercised in favour of the plaintiff. Heard Sri K. Ajay Kumar, learned counsel for the revision petitioner and the respondents did not enter appearance before this Court in spite of being served with the notice of admission. The point for consideration is whether the request for appointment of an Advocate Commissioner is to be considered favourably under the circumstances of the case? The suit is for recovery of possession of the suit schedule property i.e. 148 square yards. The specific allegations in the plaint are about the plaintiff being the owner and possessor of 3715 square yards in Sy.No.280 and the defendants 1 to 3 respectively encroaching upon 110, 35 and 3 square yards respectively while constructing their adjoining houses due to the absence of the plaintiff from Nagarkurnool due to residing with his father, who is a government servant. The impugned order shows that the defendants denied occupying any land of the plaintiff. When the plaintiff and the defendants are admittedly owners of adjoining properties and the constructions made by the defendants in sites claimed to be belonging to them were objected to by the plaintiff as encroaching into his land, physical demarcation of the properties through an Advocate Commissioner cannot be considered as collection of evidence. It is only tracing the physical features of the properties in dispute before the trial Court through the observation by an impartial Commissioner and the refusal of the trial Court to appoint an Advocate Commissioner only as the suit was posted for arguments notwithstanding the absence of any opposition from the defendants resulted in not exercising the jurisdiction vested in it by the trial Court. The matter, therefore, requires to be interfered with. However, as the defendants are not responsible for negativing the request of the plaintiff and as the request of the plaintiff for appointment of an Advocate Commissioner is obviously not prompt and is delayed, the plaintiff can be directed to bear the costs of such commission irrespective of the result of the suit without burdening the defendants with such expenses, in the event of their failure in the suit, for no fault of them. Therefore, the order dated 24-02-2011 in I.A.No.358 of 2010 in O.S.No.141 of 2007 on the file of the Court of Junior Civil Judge, Nagarkurnool, is set aside and the said I.A.No.358 of 2010 is allowed without costs. The trial Court is directed to appoint an Advocate Commissioner for the purpose of the application and fix his fees. The parties are directed to appear before the Advocate Commissioner and the Advocate Commissioner shall give notice to both parties before executing the warrant of commission and also answer work memos, if any, filed before him in this regard. The expenses of the commission shall be borne by the plaintiff irrespective of the result of the suit. The Civil Revision Petition is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 12-08-2011 Ksn