SHABEER AHMED Vs. SHAMSHAD BEGUM

JUDGEMENT

(1.) Respondent filed a suit for mandatory and perpetual injunction against the revision petitioner and filed a petition under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure to appoint an advocate commissioner to note down the physical features and to take measurements of the plots with the assistance of Municipal Surveyor, Kurnool Municipal Corporation, which was registered as I.A.No.988 of 2006 on 08.11.2006. The trial Court directed issuance of notice and posted the interlocutory application for notice and counter on 10.11.2006. On 10.11.2006 counsel for the revision petitioner sought time for filing counter during call work. The trial Court without granting time to the revision petitioner to file counter allowed the petition and appointed an advocate commissioner on the ground that no prejudice would be caused to the revision petitioner by appointing an advocate commissioner as sought in the petition. Aggrieved by the said order, the respondent/defendant in the trial Court preferred this revision.

(2.) The contention of the learned counsel for the revision petitioner is that since the revision petitioner was not given reasonable time for filing counter and as the trial Court appointed the commissioner on an assumption that no prejudice would be caused to the revision petitioner thereby, when in fact it does, as the purpose of seeking his appointment is for collection of evidence, which is not permissible, the order appointing the commissioner is liable to be set aside.

(3.) The contention of the learned counsel for the respondent is that in view of the ratio in TODENDULA VENKATA KRISHNAIAH (DEF.) v UPPU GANGAIAH and GOLLU VENKIATESWARA RAO & CO. AND OTHERS v BHOOGAVALLI RAJESWARA RAO AND ANOTHER the revision is not maintainable and as the revision petitioner, who was granted reasonable time for filing counter failed to utilise that opportunity, he cannot complain that adequate time for filing counter was given to him and contended that the prayer sought by the respondent does not amount to seeking appointment of Commissioner for collection of evidence as held in JAYALAKSHMI CONSTRUCTIONS AND ANOTHER v NAWAB BEHBOOB ALI KHAN & OTHERS and so the revision petitioner is not entitled to any relief.