Advocate-Commissioner to gather evidence not maintainable = it is the pleaded case of the petitioner that the respondents have occupied a part of the public street and raised constructions. Unless the petitioner has relevant evidence in his custody, he is not expected to file the suit. Being the plaintiff, the initial burden is on the petitioner to prove the plaint averments by adducing cogent oral and documentary evidence. Even though Order XXVI Rule 9 CPC envisages appointment of a Commissioner for elucidation of the matters in dispute, ordinarily, the Commissioner is appointed, where the Court is of the opinion that the available evidence is not enough to arrive at proper and correct conclusion for effectual adjudication of the disputes involved in the suit. Though the petitioner has filed his chief-examination affidavit in November, 2010, he has not even started adducing his evidence. Therefore, on the facts of this case, I am in agreement with the observation of the Court below that the petitioner has filed the application for appointment of a Commissioner to gather evidence instead of discharging his burden by adducing independent evidence.

The Hon’ble Sri Justice C.V. Nagarjuna Reddy

Civil Revision Petition No. 501 of 2013

Date: 21-02-2013

Between:

Papasani Sankara Reddy                                             .. Petitioner

And

Kandula Hanumantha Reddy & 6 others                      .. Respondents

Counsel for the petitioner         :  Sri V.V. Satish for

    Sri O. Manohar Reddy

Counsel for the respondents     :  ---

The Court made the following:

ORDER:

This Civil Revision Petition arises out of order, dated             02-11-2012, in I.A. No.213 of 2012 in O.S. No.58 of 2007 on the file of the learned Junior Civil Judge, Guntakal. 

The petitioner filed the above mentioned suit for declaration of his right to use the main street abutting the plaint schedule property on the southern side without any let or hindrance, and for a mandatory injunction to direct the respondents/defendants to remove the respective houses constructed by them on the main street on the southern side of the plaint schedule property and not to cause any obstruction to him from using the main street. He has filed I.A. No.213 of 2012 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short “CPC”) for appointment of an Advocate-Commissioner to inspect the suit schedule property, measure the same and demarcate the boundaries with the assistance of the Mandal Surveyor and to locate the extent of encroachment by the respondents on the southern side of the suit schedule property.  The respondents opposed the said application.  The Court below upon considering the respective pleas, dismissed the application.

The reasoning of the Court below in dismissing the application is mainly two fold, namely, that the application filed by the petitioner is belated; and that by seeking appointment of an Advocate-Commissioner, the petitioner is trying to gather evidence.

 As noted hereinabove, it is the pleaded case of the petitioner that the respondents have occupied a part of the public street and raised constructions.  Unless the petitioner has relevant evidence in his custody, he is not expected to file the suit.  Being the plaintiff, the initial burden is on the petitioner to prove the plaint averments by adducing cogent oral and documentary evidence. Even though Order XXVI Rule 9 CPC envisages appointment of a Commissioner for elucidation of the matters in dispute, ordinarily, the Commissioner is appointed, where the Court is of the opinion that the available evidence is not enough to arrive at proper and correct conclusion for effectual adjudication of the disputes involved in the suit.  Though the petitioner has filed his chief-examination affidavit in November, 2010, he has not even started adducing his evidence.  Therefore, on the facts of this case, I am in agreement with the observation of the Court below that the petitioner has filed the application for appointment of a Commissioner to gather evidence instead of discharging his burden by adducing independent evidence. 

For the above-mentioned reasons, I do not find any error, jurisdictional or otherwise, for interference with the order of the lower Court.  The Civil Revision Petition is, accordingly, dismissed.

As a sequel to dismissal of the revision petition, C.R.P.M.P. No.642 of 2013 filed by the petitioner for interim relief is disposed of as infructuous.

                                                              _____________________

                                                   C.V.NAGARJUNA REDDY, J

February 21, 2013.

Mgr/AM