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PETITIONER: M.S.R. PRASAD

       Vs.

RESPONDENT: BOMMISETTI SUBBA RAO & ORS.

DATE OF JUDGMENT:       30/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   358        1996 SCALE  (5)706

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The  petitioner  in  the  first  instance  invoked  the jurisdiction of  the civil  Court and obtained an injunction against the respondent from proceeding with the construction said to  be in  violation of  his easement  right of air and light The  respondent filed  a  writ  petition  against  the Municipal Corporation  impleading the petitioner, contending that his  construction was in accordance with the permission accorded by  them and,  therefore, he  may be  permitted  to proceed with  the construction.  Thereafter, an  application came to  be filed  for appointment  of a  Commissioner.  The learned Single Judge passed an order directing the Principal District Munsiff,  Vijayawada to  appoint a Commissioner and after notice  to the parties, the Commissioner would inspect and  submit   a  report   to  the  High  Court  whether  the construction was  in accordance  with the permission granted by the Municipal Corporation or in violation thereof.      It is not in dispute that an Advocate Commissioner came to be  appointed and   he  submitted the  report. It appears that before  submitting the  report, the respondent seems to have filed the Civil Revision Petition under section 115 and obtained stay  of Commissioner’s  submitting the report. The Commissioner, in  the  meantime,  completed  inspection  and returned the  warrant to  the Civil  Judge.  The  respondent filed an  appeal against  the  order  of  the  single  Judge appointing the  Commissioner before  the Division Bench. The Division Bench  in the  impugned order  pointed out that the writ petition  was not  maintainable and it would be open to the appellant to amend the plaint in the civil suit and seek appropriate remedy.  Accordingly the  impugned  order  dated June 19,  1996 came to be passed in Writ Appeal No.58/86.      Shri Rajeev  Dhavan, learned  Senior  counsel  for  the petitioner, sought  to contend that the writ appeal does not lie against the interlocutory order. We find no force in the contention, It  is well settled position of law in that High Court i.e.  the High  Court. of  Andhra Pradesh,  that  writ

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appeal would lie against the interlocutory order, It is then contended that  the respondent had abused the process of law and obtained  the order  when the petitioner sought to avail of the  report submitted  by the  Commissioner, the Division Bench without  going into  the report  has directed  him  to avail the remedy in the civil suit. We do not find any force in the  contention. In  views of  the fact  that the  remedy available to  the petitioner  in the  civil suit has already been availed  or, the  high Court  has rightly  declined  to interfere and dismissed the writ petition of the respondent. While disposing  of the writ appeal, the High Court directed the parties  to approach  the civil  Court and  of avail the remedy by  amending the  plaint accordingly.  Therefore,  it would not  be open  to the  petitioner to  have  his  plaint amended suitably and seek appropriate relief on the basis of the report of the Commissioner.      The petition  is dismissed accordingly. The lower court is directed  to dispose  of the  suit  as  expeditiously  as possible with in four month from the date of receipt of this order.