SINGIDI RAM REDDY Vs. KOTRA SUDHAKAR GUPTA

JUDGEMENT

(1.) Challenging the order dtd. 10/10/2010 in I.A. No. 351 of 2010 in I.A. No. 175 of 2010 in O.S. No. 74 of 2010 on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Vikarabad, appointing an advocate-commissioner to visit and note down the physical features of the suit schedule property and to submit his report along with a plan, the present Revision is filed by the petitioners, defendants in the suit. Heard learned counsel for the petitioners and the learned counsel for the respondent at length. Perused the material available on record.

(2.) The learned counsel for the petitioners-defendants vehemently submits that allowing the I.A. filed by the respondent-plaintiff for appointing an advocate-commissioner, pending consideration of the application in I.A. No. 175 of 2010 filed by the plaintiff for grant of temporary injunction is nothing but allowing collection of evidence at the instance of the parties to the suit, which is impermissible. The learned counsel fairly submits that there are number of decisions of the Apex Court as well as this Court both justifying appointment of advocatecommissioner and also taking contra view. Hence, he submits that the suit having been filed for perpetual injunction, the local inspection that is ordered through the advocate-commissioner would be nothing but gathering evidence and if the same is allowed, it would be contrary to the settled principles and that parties to the suit have to succeed based on the evidence that may be adduced before the Court.

(3.) On the other hand, the learned counsel appearing on behalf of respondent-plaintiff submits that the trial is not yet commenced in the suit and unless the survey is conducted under the supervision of a commissioner appointed by the Court, the dispute between the parties as to the identity of the subject-matter cannot be resolved effectively and therefore, the trial Court is justified in appointing the advocate-commissioner to note down the physical features, including the boundaries of the suit schedule property.