Appointment of advocate commissioner at the stage of appeal is a rare phenomenon and the scrutiny into it would be more stringent, compared to the one filed under Rule 27 of Order 41 CPC.

CRP 997 / 2013

CRPSR 5545 / 2013


C.R.P.No.997 of 2013


The 1st respondent-Devasthanam, represented by the trustees respondents 2 and 3, filed O.S.No.1365 of 2007 in the Court of II Additional Junior Civil Judge, Guntur, against the petitioner herein, for eviction from the suit schedule property and recovery of damages.  It was pleaded that the petitioner has encroached the land belonging to the 1st respondent and has established a shop thereon.  The petitioner on the other hand pleaded that he did not encroach the land and the shop being run by him, is in the road margin.   The trial Court decreed the suit on 29-10-2009.  
Aggrieved by the decree, the petitioner filed A.S.No.89 of 2010 in the Court of II Additional District Judge, Guntur.  
In the appeal, he filed I.A.No.49 of 2011 under Rule 9 Order XXVI CPC with a prayer to appoint an advocate commissioner to measure the road and road margin infront of the temple and to file report. 
 He pleaded that though similar application was filed in the trial Court, it was dismissed and it has now become necessary to appoint a commissioner.  The application was opposed by the respondents.  The lower appellate Court dismissed the I.A., through order dated 15-06-2012.  Hence, this revision.

Heard Sri P. Vijay Kiran, learned counsel for the petitioner. 

The specific plea of the respondents was that the petitioner has occupied the land belonging to them and was running a shop without paying the rents.  
On his part, the petitioner did not claim title to the land, on which the shop was existing.  On the other hand, it was his case that the shop is in the road margin. 
 If that were to be so, he ought to have taken necessary steps to prove the plea taken by him.  He filed an application to appoint an advocate commissioner, for this purpose.  The trial Court has rightly rejected the same observing that such a step would amount to a device for gathering evidence.  
The suit was ultimately decreed.  The petitioner did not state any additional fact, when he filed the application once again for appointment of commissioner at the stage of appeal.

An appeal filed against a decree in a suit has to be decided on the basis of the evidence, which was made part of record by the trial Court.  
In case, the appellant feels that additional evidence needs to be taken on record, an application under Rule 27 Order 41 CPC needs to be filed.  It is only when the circumstances, that are mentioned in the provision, are established, that an appellate Court can consider the feasibility of granting permission.  
Appointment of advocate commissioner at the stage of appeal is a rare phenomenon and the scrutiny into it would be more stringent, compared to the one filed under Rule 27 of Order 41 CPC.  
The lower appellate Court has taken correct view and this Court is not inclined to interfere with the order under revision. 

Hence, the Civil Revision Petition is dismissed.  There shall be no order as to costs.
The miscellaneous petition filed in this civil revision petition shall also stand disposed of.





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