Advocate Commissioner Can Be Appointed In Suit For Perpetual Injunction, His Report Open To Objections Including Cross Examination: Telangana HC

The Telangana High Court has upheld the order of an appellant authority to appoint an Advocate Commissioner in a suit for perpetual injunction to localize the suit property and iterated that a commissioner report is subject to objections, including cross-examination.

The Bench of Justice M.G. Priyadarshini has passed the order in a couple of Civil Revision Petitions challenging a common order passed by the Appellate Court in two Civil Miscellaneous Appeals.

While doing so, the Bench has reiterated that the task of a commissioner is 'non-adjudicatory' in nature as the commissioner is merely providing an opinion. Further, it was held that the report submitted by the Commissioner can be tested in the suit, and the same is subject to scrutiny and objections including cross examination. Relying on M. Yadaiah and another v. M. Chilakamma and others the Court held that appointing an advocate commissioner to note down physical features cannot be equated to collecting of evidence.

"It is settled law that a Court appointed commissioner's report is only an opinion or noting and are 'non-adjudicatory in nature'. It is also settled a law that appointment of advocate commissioner is a discretionary relief of the Court. Furthermore, the evidentiary value of any report of the Commissioner is a matter to be tested in the suit and such report is subject to objections including cross-examination."

Initially, the petitioner in one of the Civil Revision Petitions herein filed a suit for perpetual injunction along with an application seeking interlocutory injunction. The application was allowed and an injunction was granted till the final disposal of the suit. The first Civil Miscellaneous Appeal was filed by the defendant and the petitioner in the second revision petition filed herein.

Consequently the defendant initiated another suit for perpetual injunction against the plaintiffs in the above mentioned suit and seeking an interim relief of temporary relief before the same Court. The application for interim relief was dismissed. and the defendant filed the second Civil Miscellaneous Appeal against the dismissal order.

Both Civil Miscellaneous Appeal were disposed of together since the parties were the same. Upon inspection the appellate authority noted that although the schedules seemed to be different, it seemed like both parties were claiming rights over the same property. Hence, an advocate commissioner was appointed to localize the property and submit a report regarding the description of both properties.

The plaintiff/petition contended that the properties in 2009 were alrey located, localized and demarcated by competent Courts in various proceedings and as such there was no need for a re-survey.

The Bench while reiterating that appointing an advocate commissioner is the discretion of the Court relied on K. Dayanand and another v. P. Sampath Kumar to hold that an advocate commission can even be appointed in a suit for perpetual injunction.

The Court further noted that the previous demarcating report did not disclose sub-divisions in survey numbers and hence could not be relied upon.

With that observation the Bench dismissed both revision petitions.

CRP 111 & 1112 of 2020

Counsel for petitioner: S. Lakshmi Kanth

Counsel for respondent: Pillix Law Firm

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