THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2765 of 2011 (Dated : 18-08-2011) Between: Sandhu Saradamma and others ...Petitioners A n d Sandhu Subbarayudu @ Janaki Ramaiah ...Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2765 of 2011 ORDER: This revision is directed against the order dated 20.6.2011 passed in I.A.No.149 of 2011 in O.S.No.228 of 2006 on the file of IV Additional Junior Civil Judge, Kadapa, whereby and whereunder, the learned Junior Civil Judge dismissed the application filed under Order XXVI Rule 9 read with Section 151 CPC seeking appointment of a Commissioner to note down the physical features and to measure the suit property. 2. Background facts, in a nutshell, leading to filing of this application by the plaintiffs in O.S.No.228 of 2006 are:- The plaintiffs filed the suit for perpetual injunction against the defendants in respect of the suit schedule property. It is the case of the 1st plaintiff that she is the absolute owner of the suit schedule property having acquired the same from the 1st defendant towards her life maintenance by virtue of compromise in M.C.No.11 of 1999 and that she along with her son who has been arrayed as plaintiff No.2 has been in possession and enjoyment of the house property and that the 1st defendant has no right, title over the same. The 1st defendant filed written statement resisting the relief sought for by the plaintiffs. However, the 1st defendant admitted of the possession of the 1st plaintiff in respect of the suit schedule property. Paragraphs (6) and (7) of the written statement need to be noted and it is thus:- “6. While things stood thus the suit schedule house (2nd floor) was lying as vacant for some time in the year, 2005. Then in the month of March, 2005 the first plaintiff brought one Nurse to the house of defendant No.1 and said that the Nurse requires a house for rent and she wanted to see this suit house to take for rent. Then the wife of this defendant namely Vijaya Lakshmi had shown them the suit house and on that the first plaintiff paid an amount of Rs.1500/- to the wife of this defendant as an advance of one month rent on behalf of nurse. The wife of this defendant gave the suit house on rent of Rs.1500/- per month to the said nurse but the first plaintiff came and joined in the suit house in the month of April, 2005. then this defendant and his wife Vijaya Lakshmi questioned the plaintiffs for their joining in the suit house and on that the first plaintiff replied that the nurse had withdrawn from joining in suit house and as they were felling an inconvenient to live in Sankarapuram they themselves joined in suit house by saying that they would pay the rents regularly and ever since they are living in suit house as tenants of this defendant and his wife. The plaintiffs failed to pay the rents regularly and on that this defendant and his wife Vijaya Lakshmi demanded the plaintiffs to vacate the suit house. Having aggrieved by the serious demand of this defendant and his wife, the plaintiffs filed this vexatious suit with intent to extract an unlawful amounts from this defendant by putting him under blackmai. The plaintiffs paid the rents to this defendant for suit house (2nd floor) at Rs.1500/- (fifteen hundreds) per month till the month of December, 2005 and thereafter, they deliberately became default in paying of the same. 7. The first defendant and his wife Vijaya Lakshmi jointly purchased this suit schedule house under a registered sale deed, dated 5.11.2004 and they are the lawful owners of the same. Since the wife of this defendant namely Vijaya Lakshmi also a joint owner the suit is not maintainable for non-joinder of necessary party. Since the plaintiffs are not having any valid title over suit property except as tenants and became default in paying of rents, they are liable for vacate the suit house by paying the arrears of rent. This defendant is reserved his right for recovery of arrears of rent from the plaintiffs under counter claim in future. As stated above there is no prima facie case and balance of convenience in favour of plaintiffs and the same are stands in favour of this defendant. There are no merits in this suit and the same is filed to harass this defendant and to extract an unlawful gain. There are no merits and no cause of action to this suit.” 3. When the suit came up for arguments, the plaintiffs filed an application being I.A.No.149 of 2011 seeking for appointment of a Commissioner to note down the physical features. In the affidavit filed in support of the application, it is stated that pending disposal of the suit, the plaintiffs spent Rs.70,000/- to effect repairs to the house and therefore, they sought for appointment of Commissioner to note down the constructions made by them. 4. The 1st defendant filed counter resisting the application. 5. The trial Court on considering the material brought on record and on hearing the counsel appearing for the parties, came to be conclusion that physical features of the suit schedule Property are not required to be noted for adjudication of the issue involved in the suit and thereby, proceeded to dismiss the application, by order dated 20.6.2011. Hence, this revision. 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioners submits that the petitioners/plaintiffs spent considerable amount in effecting repairs when a part of the building came to be demolished in road-widening and therefore, repairs made by the petitioners are required to be noted for proper adjudication of the issue involved in the suit. 8. Whereas it is contended by the learned counsel appearing for the 1st respondent that the suit is for injunction simplicitor and therefore, there is no need to note down the physical features and structures, if any, put up by the petitioners-plaintiffs. 9. As I stated supra, the suit is for injunction simplicitor. The 1st defendant does not dispute of the possession of the 1st plaintiff. However, the plea of the 1st defendant is that the plaintiffs are residing as tenants in the house. Such is the plea advanced by the parties, the repairs, if any, carried out by the petitioners are not essential for proper adjudication of the issue involved in the suit. The trial Court is justified in dismissing the application moved by the petitioners seeking appointment of an Advocate Commissioner. 10. Accordingly, the Civil Revision Petition is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.18-08-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2765 of 2011 (Dated : 18-08-2011)