Case Note & Summary
The matter arose from a civil revision petition filed under Article 227 of the Constitution of India before the High Court of Andhra Pradesh at Amaravati, challenging an order of the Principal Junior Civil Judge, Addanki dated 04.03.2025 in I.A.No.2211 of 2024 in O.S.No.312 of 2000. The petitioners were the plaintiffs and the respondents were the defendants in the suit. The plaintiffs had filed the suit for specific performance based on an agreement of sale dated 28.01.1988 and for permanent injunction against defendant Nos. 2 to 7. During pendency of the suit, the plaintiffs filed I.A.No.3 of 2024 for impounding the agreement of sale, which was dismissed on 24.09.2024; the District Registrar rejected impounding on the ground that the subject property was in Sy.No.652/1, which is enlisted under Section 22(A) of Registration Act, 1908 as prohibitory property. Subsequently, the plaintiffs filed I.A.No.2211 of 2024 under Order XXVI Rule 9 CPC seeking appointment of an Advocate Commissioner with Mandal Surveyor to determine the survey number of suit schedule property. The trial court dismissed this application on 04.03.2025, holding that the plaintiffs had not established that the property was in Sy.No.652/2 and that the application was filed belatedly, possibly to delay proceedings. The core legal issues were whether appointment of an Advocate Commissioner under Order XXVI Rule 9 CPC is warranted when there is dispute over identification, location, or survey number of property; whether local investigation amounts to gathering evidence; and whether the trial court's dismissal was in error. Petitioners argued that settled law requires local investigation in demarcation disputes, relying on Badana Mutyalu v. Palli Appalaraju, P. Sreedevi v. IVLN Venkata Lakshmi Narsimha Prasad, Anusuri Krishna v. Kundala Nageswara Rao, and Haryana Waqf Board v. Shanti Sarup. They contended that without ascertaining survey number and boundaries, the court cannot resolve the dispute. The trial court reasoning suggested the application was a delaying tactic since the impounding application had been rejected. The High Court examined the principles governing Order XXVI Rule 9 CPC, noting that the power is discretionary and must be exercised judiciously; local investigation is appropriate for demarcation or identification of land and does not amount to gathering evidence. The extracted portion of the judgment discussed precedents supporting appointment of Advocate Commissioner in such circumstances. The final operative order is not included in the provided text, so the specific relief granted or denied cannot be stated; however, the High Court was considering setting aside the trial court's order and allowing the application in line with settled law.
Headnote
A) Civil Procedure - Appointment of Advocate Commissioner - Order XXVI Rule 9 of Code of Civil Procedure, 1908 - Discretionary Power - The trial court dismissed an application for appointment of Advocate Commissioner to determine survey number on the grounds that plaintiffs failed to establish location and that the application was belated; the High Court noted that the power under Order XXVI Rule 9 CPC is discretionary and must be exercised judiciously based on facts and circumstances; where demarcation or identification of disputed land is in controversy, local investigation by Advocate Commissioner is appropriate and does not amount to gathering evidence (Paras 1-6). B) Evidence - Impounding of Document - Section 22(A) of Registration Act, 1908 - Prohibitory Property List - Earlier application for impounding agreement of sale dated 28.01.1988 was dismissed as District Registrar rejected claim on ground property in Sy.No.652/1 listed under Section 22(A) of Registration Act, 1908; this was cited as reason trial court considered subsequent application as delay tactic; however, the need for a surveyor to identify survey number remains relevant for resolution of the dispute (Paras 3-4). C) Constitutional Law - Supervisory Jurisdiction - Article 227 of Constitution of India - Scope of Revision - Civil revision petition under Article 227 challenged trial court's order dismissing Advocate Commissioner application; the High Court considered whether trial court's exercise of discretion was contrary to settled law and warranted interference (Paras 1-6).
Issue of Consideration
Whether the trial court erred in dismissing I.A.No.2211 of 2024 filed under Order XXVI Rule 9 CPC for appointment of Advocate Commissioner to determine survey number of suit schedule property with Mandal Surveyor, particularly when there was controversy over survey numbers and earlier impounding application was rejected under Section 22(A) of Registration Act.
Final Decision
Not mentioned in the provided text.
Law Points
- Appointment of Advocate Commissioner under Order XXVI Rule 9 CPC is discretionary and must be exercised judiciously
- local investigation is appropriate where there is controversy as to identification
- location
- measurement or demarcation of land
- such appointment does not amount to gathering evidence
- impounding of document under Section 22A Registration Act must be considered separately
- supervisory jurisdiction under Article 227 is limited.
