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.


The Hon'ble Sri Justice C.V.Nagarjuna Reddy
Civil Revision Petition No.1386 of 2012

26-03-2012

Iqbal Banu Begum and two others

Mohd. Sirajuddin

<GIST:

> HEAD NOTE:  
 Counsel for the Petitioners: Sri M.A.K. Mukheed
 Counsel for the Respondent: None
? Cases Referred: ---

Order:
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.

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.

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.

In the light of the above facts, I do not find any reason to interfere with the
order of the lower Court.

The Civil Revision Petition is, accordingly, dismissed.

As a sequel, C.R.P.M.P.No.1873 of 2012 filed by the petitioners for interim
relief is disposed of as infructuous.

__________________________  
C.V.Nagarjuna Reddy, J)
26th March, 2012

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