THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition Nos.4339 & 4364 of 2011 (Dated : 25-11-2011) Between: Shaik Sabirunnisa Begum @ Hasan Banu W/o Shaik Abdul Rahiman Shareef, R/o D.No.13/302, Chittari Kondappa Street Kadapa Town & District ….Petitioner A n d Kalluru Chinna Yella Reddy R/o Kadapa town & District ….Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition Nos.4339 & 4364 of 2011 COMMON ORDER: These two revisions are directed against the interlocutory orders passed in O.S.No.465 of 2008 on the file of IV Additional Junior Civil Judge, Kadapa. 2. More precisely; C.R.P.No.4339 of 2011 is directed against the order dated 2-8- 2011 passed in I.A.No.642 of 2011 and whereas C.R.P.No.4364 of 2011 is directed against the order dated 2-8-2011 passed in I.A.No.643 of 2011 in O.S.No.465 of 2008. 3. The petitioner in both the revisions is the plaintiff and whereas the respondent is the defendant in O.S.No.465 of 2008. The petitioner-plaintiff filed the suit seeking the following relief:- “ a) granting permanent injunction restraining the defendant, his men, agents and all such other persons claiming right or authority under her from interfering with the peaceful possession and enjoyment of the suit schedule property shown as C D G H in the plaint plan by any means, b) grant mandatory injunction directing the defendant to remove the structures or constructions made by him in the suit property shown as C D G H in the plaint plan including the three pillars shown as P1, P2 and P3 in the plaint plan, within the time fixed by the Hon’ble Court and in the event of his failure to do so, the Hon’ble Court may be pleased to get it done through process of law at the costs of the defendant. c) for costs of the suit d) and to grant such other relief or reliefs as the Hon’ble Court deems fit and proper in the circumstances of the case in the interests of justice.” 4. The petitioner-plaintiff earlier filed I.A.No.35 of 2009 under Order XXVI Rule 9 CPC seeking appointment of an Advocate Commissioner to note the physical features of the suit schedule property. The learned Junior Civil Judge allowed the said application, by order dated 14-7-2009. Thereupon, the respondent-defendant filed C.R.P.No.4197 of 2009. The said CRP came to be allowed by order dated 20- 7-2010. The relevant portion of the order reads as hereunder:- “ The suit filed by the respondent is for the relief of injunction simplicitor. It is, ultimately, for the respondent to establish her possession over the suit schedule property by adducing oral and documentary evidence. The appointment of Commissioner in a suit of that nature, that too, before commencement of the trial is prone to be a step for gathering evidence. Even if it is a fact that the petitioner is making efforts to make construction in the suit schedule property, the respondent has to come forward with necessary application for proper relief. Appointment of a Commissioner is untenable at this stage”. 5. The petitioner-plaintiff examined one witness on her behalf and whereas the respondent-defendant examined himself as DW.1. When the case stood posted for arguments, the petitioner-plaintiff filed I.A.No.642 of 2011 to reopen the suit and I.A.No.643 of 2011 for appointment of Advocate Commissioner to note down the physical features existing on the suit schedule property. It is stated in the affidavit filed in support of I.A.No.643 of 2011 that the respondent-defendant after the injunction is vacated made constructions in a portion of the suit property and those constructions have to be noted by an Advocate Commissioner. The report of the Advocate Commissioner would be aiding this Hon’ble Court in coming to right/just determination of the controversy between the parties. 6. The respondent-defendant filed counter resisting the applications. 7. The learned Junior Civil Judge, after considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss both the applications, by orders dated 2-8-2011. Hence these two revisions. 8. Notice before admission came to b e ordered o n 21-11-2010. The respondent entered appearance through a counsel. 9. Heard learned counsel appearing for the parties. 10. Learned counsel appearing for the petitioner-plaintiff submits that the trial Court proceeded to dismiss the applications filed by the petitioner-plaintiff on the premise that in C.R.P.No.4197 of 2009, this Court set aside the order for appointment of an Advocate Commissioner. He would further contend that the observation made by this Court in the said CRP is that the application for appointment of an Advocate Commissioner before the commencement of trial amounts to gathering evidence. Though various other contentions have been advanced by the learned counsel appearing for the respondent, in view of the order proposed to be passed, those contentions are not required to be elaborated here. 11. Learned counsel appearing for the respondent supported the orders impugned in the revision. 12. As could be seen from the order passed by the trial Court, the trial Court proceeded to dismiss the applications on the premise that this Court refused to appoint Commissioner in C.R.P.No.4197 of 2009. The order passed by this Court has been extracted supra. The earlier revision came to be allowed setting aside the order dated 14.7.2009 passed in I.A.No.35 of 2009 on the ground th a t the appointment of an Advocate Commissioner before commencement of trial amounts to a step for gathering evidence. It does not mean that the petitioner is prevented from moving an application seeking appointment o f Commissioner after commencement of trial. There is no observation by this Court that the application filed by the petitioner seeking appointment of Commissioner lacks bona fides. The basis on which the trial Court Judge proceeded to dismiss the applications cannot be sustained. 13. Therefore, both the revisions are allowed setting aside the orders dated 02-8- 2011 passed in I.A.Nos.642 & 643 of 2011 in O.S.No.465 of 2008 on the file of IV Additional Junior Civil Judge, Kadapa and remanding the matter to the trial Court for fresh consideration. The trial Court has to dispose the IAs within two weeks from the date of receipt of copy of the order. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.25-11-2011 RAR