Or.26, Rule 9 of C.P.C.- APPOINTMENT OF ADVOCATE COMMISSIONER - NOT NECESSARY IN THIS CASE = in a suit for perpetual injunction when the plaintiff’s alleged possession is already protected by order of status quo pending the suit, plaintiff cannot be allowed to seek appointment of advocate commissioner under the guise of noting physical features. Such request on behalf of the plaintiff could not have been entertained by the trial court as it might amount to appointing an advocate commissioner to collect evidence. The plaintiff has approached the court claiming to be in possession of the property and it is open for him to lead such evidence as he deems necessary to establish his possession. However, seeking appointment of an advocate commissioner as sought for is clearly impermissible. Order of the Court below, therefore, does not require any interference.


HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

CIVIL REVISION PETITION No.569 of 2013

Dt:- 22.02.2013

Between:-

Konda Gattaiah
… Petitioner
and


Anasuri Venkat Swamy and another
… Respondents

This Court made the following:-

HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

CIVIL REVISION PETITION No.569 of 2013

ORDER: -
The plaintiff in a suit for perpetual injunction obtained an order of status quo pending the suit, which is in force.  Petitioner has now thereafter sought appointment of advocate commissioner to note down the physical features on the ground that respondents are influential persons and they may disturb the petitioner and the physical structures thereon and thereby the petitioner may lose the site.  That application was opposed by the respondents and the Court below under the impugned order has rejected the application on the ground that petitioner did not mention need for appointment of advocate commissioner.  This revision is directed against the said order at the instance of the plaintiff.
Heard learned counsel for the petitioner.
While the learned counsel is right in submitting that the reasons for seeking appointment of advocate commissioner are mentioned in his affidavit and the Court below did not properly appreciate that part, however, 
in a suit for perpetual injunction when the plaintiff’s alleged possession is already protected by order of status quo pending the suit, plaintiff cannot be allowed to seek appointment of advocate commissioner under the guise of noting physical features.  Such request on behalf of the plaintiff could not have been entertained by the trial court as it might amount to appointing an advocate commissioner to collect evidence. 
 The plaintiff has approached the court claiming to be in possession of the property and it is open for him to lead such evidence as he deems necessary to establish his possession.  
However, seeking appointment of an advocate commissioner as sought for is clearly impermissible.  Order of the Court below, therefore, does not require any interference.
Civil Revision Petition is, accordingly, dismissed.  The miscellaneous petitions pending in this petition, if any, shall stand closed. No costs.

 


_____________________________VILAS V. AFZULPURKAR, J


22.02.2013
pab/lmv

HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR











































CIVIL REVISION PETITION No.569 of 2013







22.02.2013


pab/lmv

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