IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2923 of 2011 Between: Mekala Anjaneyulu .. Petitioner AND K. Vajender Rao & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2923 of 2011 ORDER: Heard Sri R. Radha Krishna Reddy, learned counsel for the revision petitioner and Sri K. Venkatesh Gupta, learned counsel for the respondents. 2. The civil revision petition is directed against the order in I.A.No.151 of 2011 in O.S.No.173 of 2007, on the file of the Junior Civil Judge’s Court, Gadwal, dated 24.06.2011, by which the request of the defendant/petitioner for appointment of an Advocate Commissioner to measure the plaint schedule property within the boundaries specified in the plaint schedule and ascertain the actual extent available on land within the said boundaries was dismissed. 3. The trial Court, in the impugned order, was of the opinion that apart from the suit being an old suit of 2007, the appointment of an Advocate Commissioner will amount to collection of evidence. Relying on BONGU RAMULU AND ANOTHER VS. GUDUR NARENDER REDDY [1998 (3) ALT 473], wherein this Court held that the function of adjudication as to who is in actual possession of the suit property cannot be entrusted to an Advocate Commissioner, the trial Court dismissed the petition, more so, due to the petition being filed when the matter was posted as a last chance for the evidence of the defendant and as the petition was only to drag on the matter. 4. The defendant challenges the said order herein contending that the jurisdiction vested under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short, “C.P.C”), was not exercised by the trial Court due to wrong appreciation of facts and there being no other opportunity available to the parties to prove the exact extent of land within the boundaries specified in the plaint schedule, the appointment of an Advocate Commissioner is inevitable and it will not amount to collection of evidence. It will help in proper adjudication of the suit for injunction with no prejudice to either party. 5. The point for consideration is whether the request for appointment of an Advocate Commissioner for the purpose stated should have been considered. 6. Sri R. Radha Krishna Reddy, learned counsel for the revision petitioner rightly relied on SHAIK ZAREENA KASAM VS. PATAN SADAB KHAN AND OTHERS[1], wherein a learned Judge of this Court, with reference to earlier precedents, observed that whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as alleged by one party and disputed by the other party, the facts have to be physically verified, as the recitals in the documents may not reveal the facts. The Court was of the opinion that measuring of the land on the spot by a Surveyor may become necessary, while the parties can be allowed to adduce evidence at the stage of trial for better appreciation of facts. The Court also expressed the opinion that reasonable costs can be imposed if there are some laches on the part of a party or delay in filing the application, but it is not desirable to dismiss the application itself on the ground of delay. 7. While it should be made clear in the first instance that the mere fact that the suit is old or that the defendant is given a last chance to adduce his evidence by itself cannot be a ground to dismiss the application on the ground of delay nor will the Court be justified in presuming that the request was intended only to drag on the matter. 8. That apart, what was frowned upon in BONGU RAMULU’s case [1998 (3) ALT 473] was delegation of the determination of question of possession to the Advocate Commissioner by the Court, but not ascertainment of essential physical features of the disputed property which will help in a reasonable and comprehensive adjudication of the questions in issue between the parties. The defence of the defendant briefly stated in the affidavit in support of the application is that the actual extent of land within the boundaries specified in the plaint schedule is Ac.3.24 guntas and not Ac.2.13 guntas as sought to be projected in the plaint schedule. The discrepancy in extent, if true, will have a material bearing on determination of the questions in issue between the parties and taking measurements of the property within the boundaries specified in the plaint schedule cannot be considered to be determining as to who is in possession of the property in question. The defendant had, in fact, not even asked for noting of any physical features of the property within the boundaries specified in the plaint schedule to suspect the possible reliance he may place on such physical features which may be noted by the Advocate Commissioner. Under the circumstances, it is evident that the trial Court has not exercised the jurisdiction vested in it in this regard and the impugned order has to be interfered with. 9. However, the fact remains that in the suit of 2007, the defendant had not taken any steps in this regard till the matter has been posted as a last chance for production of his evidence inspite of knowing what defence he has taken in the suit since inception. As pointed out by the learned Judge in SHAIK ZAREENA KASAM’s case (supra 1), such laches and delay should lead to imposition of reasonable terms and in the present case, the defendant can be directed to bear the costs of the commission irrespective of the result of the suit. Sri K. Venkatesh Gupta, learned counsel for the respondents/plaintiffs also desires that it may become necessary to have the entire survey No.680/1 to be measured and if the plaintiffs feel so, they can obtain appropriate directions in this regard from the trial Court to the Advocate Commissioner, who in any view, has to answer the work memos filed by the parties before him. 10. In the result, the order in I.A.No.151 of 2011 in O.S.No.173 of 2007, on the file of the Junior Civil Judge’s Court, Gadwal, dated 24.06.2011, is set aside and the said I.A.No.151 of 2011 in O.S.No.173 of 2007 is remanded to the trial Court with a direction to appoint an Advocate Commissioner for the purposes of the petition and fix the fee payable to him by the petitioner/defendant. The Advocate Commissioner shall give notice to both parties to appear before him at the time of the execution of the warrant and both parties are directed to appear before the Advocate Commissioner. The Advocate Commissioner shall answer work memos, if any, filed before him by the parties and if the plaintiffs desire to have a further direction to the Advocate Commissioner to have the entire S.No.680/1 measured by him, they are at liberty to approach the trial Court for issuance of such appropriate directions which request will be considered and decided by the trial Court on merits in accordance with law. The costs of the commission shall be borne by the revision petitioner/defendant irrespective of the result of the suit. The Civil Revision Petition is ordered, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 14th September, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2923 of 2011 Date: 14th September, 2011 KL [1] 2011 (4) ALD 231