IQBAL BANU BEGUM Vs. MOHD SIRAJUDDIN

JUDGEMENT

(1.) This Civil Revision Petition arises out of Order, dated 15.02.2012, in I.A. No. 149 of 2010 in I.A. No. 413 of 2010 in O.S. No. 2566 of 2010 on the file of the learned XIX Junior Civil Judge, City Civil Court, Hyderabad. The petitioners are the defendants in the above-mentioned suit filed by the respondent for permanent injunction restraining the petitioners and the persons claiming through them from interfering with the peaceful possession, enjoyment and usage of the suit passage allegedly forming part of house municipal No. 16-2-840/1/C of Amin Colony, Saidabad, Hyderabad. The respondent has filed an application for temporary injunction. In the said application, he has filed another application for appointment of an Advocate Commissioner to make local inspection and measure the passage and report whether the approach way is the only access to the respondent's house. The lower Court allowed the said application by its order under revision.

(2.) At the hearing, Mr. M.A.K. Mukheed, learned counsel for the petitioners, seriously attacked the order of the lower Court by submitting that the lower Court has virtually permitted the Advocate Commissioner to gather evidence and that such a course is not permissible. The learned counsel further submitted that in a suit for permanent injunction, no Advocate Commissioner can be appointed.

(3.) An Advocate Commissioner is appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. In the instant case, the claim for injunction made by the respondent is based on the plea that there is only one way to his house and that he is being prevented by the petitioners from using the said way. Any amount of evidence in this regard may not enable the Court to render a conclusive finding on this aspect. Therefore, a situation such as this would certainly fall within the expression of "elucidating any matter in dispute". This in my opinion would not amount to gathering evidence. It only helps the Court in ascertaining with certainty as to whether there is only one way or there are any other alternative ways for the respondent to reach his house. In deed, by appointing an Advocate Commissioner on the facts of the present case, no harm is caused to the interests of the petitioners, as it is their case that the lane exclusively belongs to them and that there are alternative ways for the respondent to reach his house. By the inspection of the Advocate Commissioner and submission of his report, the real matter in dispute can be more effectively and conveniently resolved.