Andhra HC (Pre-Telangana)
Vemuri Siva Venkata Koteswara Rao vs Jasti Bala Rama Krishna And Anr. on 8 February, 2002
Equivalent citations: 2002(2)ALD820, 2002(4)ALT610, AIR 2003 (NOC) 51 (AP), 2002 A I H C 3154, (2002) 2 ANDHLD 820, (2002) 4 ANDH LT 610
ORDER
1. This revision petition is filed against the order dated 25th September, 2000, in IA No.459 of 1998 in OS No. 162 of 1998 on the file of Junior Civil Judge, Avanigadda.
2. In IA No.399 of 1998 the trial Court appointed under the provisions of Order XXVI Rule 9 CPC., a Commissioner to note the physical features of the suit lands and a Bode said to be in existence in the suit lands. Commissioner inspected the suit property. She filed her report dated 10-8-1998 in the Court. The said appointment of Commissioner was made on a petition filed by the plaintiff. After the Commissioner filed her report, the defendants, who are the respondents in this revision petition, filed second application in IA No.459 of 1998 to appoint a Commissioner to note the physical features and also to note the existence of other source of irrigation to the plaintiff, etc. The trial Court appointed a Second Commissioner overruling the objections made by the plaintiff. Aggrieved by that order dated 25th September, 2000, the plaintiff filed this revision petition.
3. At the time of appointing the Second Commissioner, the trial Court observed that the first Commissioner did not serve notice on the first defendant about her inspection, the report of the first Commissioner is inconsistent and the observations therein are contradictory to one another. Taking into consideration the fact that the first Commissioner ceased to practice in that Court, the trial Court appointed the Second Commissioner. At this juncture it is necessary to point our that at the time of appointing the Second Commissioner, the trial Court did not reject the report of the first Commissioner filed on the basis of the appointment of Commissioner in IA No.399 of 1998. The trial Court relied upon a decision of this Court in Guthula Satyamma and Ors. v. Rudraraju Venkataraju and Ors., . In that case the two reports of the first Commissioner were found conflicting and causing confusion and therefore a Second Commissioner was appointed. The appointment of Second Commissioner was upheld by this Court in the above decision.
4. In the present case also, the trial Court observed in the impugned order that it is dissatisfied with the report of the Commissioner. The reasons for the dissatisfaction with the report of the first Commissioner are not explicitly stated by the trial Court in its order. A reading of the entire impugned order gives the impression that trial Court's opinion that there are inconsistencies and observations are contradictory to one another appears to be the basis for dissatisfaction felt by the trial Court. The inconsistency or contradictory observations, as stated by the trial Court, is that in the answer given to the work memo filed by the plaintiffs advocate, the Commissioner stated that there is ABCD Bode in the suit lands and in the answers given to the additional work memo filed by the plaintiffs advocate, the Commissioner stated that there is no Bode at CD point. Therefore, the trial Court observed that thus the Commissioner's report is inconsistent and also self contradictory one. At the time of hearing of this revision petition, the learned advocate for the revision petitioner read the entire report filed by the Commissioner. There are no inconsistencies or self contradictory observations in the report of the first Commissioner. Perhaps the trial Court did not read the first Commissioner's report in correct perspective. One work memo was given by the plaintiffs Counsel to the Commissioner before the Commissioner reached the suit property. On the spot, additional work memo was given by the plaintiffs Counsel. In the first work memo, the Commissioner was requested to note suit Bode. Answering the first work memo, the Commissioner stated that she noted the disputed Bode as ABCD., in her sketch. In the additional memo given by the plaintiff, the Commissioner was requested to note the physical features that a portion of ABCD Bode was recently removed. In answer to that question, she stated that near the place 'CD' in 'ABCD' Bode, the soil to a length of about two feet and distance of about one yard is loose and it was noticed that it was closed recently. Prima facie those observations cannot be treated as inconsistent or self contradictory in nature. Further, cumulative effect of the observations made by the Commissioner in the report and the evidence adduced by both the parties during the course of trial is to be taken into consideration by the trial Court at the time of giving findings on various issues settled, and disposal of the suit finally. Therefore, it cannot be said that there is any dissatisfaction on the report submitted by the first Commissioner to be recorded. Therefore, there is no basis for dissatisfaction on the first Commissioner's report. Therefore the impugned order made by the trial Court on the ground that it is dissatisfied with the report of the first Commissioner cannot be sustained. Therefore, the decision relied upon by the trial Court for appointing the Second Commissioner is of no assistance to the defendants-respondents.
5. It is the contention of the respondent that no notice was served on the first defendant by the Commissioner before her visit and the notice served on the second defendant was not before the visit but at the spot when the Commissioner reached the suit property. The affidavit filed by the second defendant in support of the application of the defendants in IA No.459 of 1998 discloses that first defendant is the son-in-law of the second defendant. The affidavit further discloses that the second defendant and her husband are looking after the properties of the first defendant in the suit village. The first defendant is not admittedly residing in the village where the suit property is situated. The notice served on the second defendant, who is looking after the interest of the first defendant in the suit properties, is sufficient notice on the first defendant. Further, the brother of the first defendant was also present at the time of inspection by the Commissioner. That fact is evident from the report of the first Commissioner. The first Commissioner in her report stated that she in fact went to the village of the first defendant to serve the notice and she was informed that the first defendant went to the suit lands and thereafter she visited the suit village to serve the notice on the second defendant and as she learnt that the second defendant also went to the suit lands, she reached the suit lands and then served, before commencing the inspection, a notice on the second defendant personally but also on the brother of the first defendant, representing the first defendant. The service of notice on the second defendant on the spot and also the service of notice on the brother of the first defendant at the spot are not disputed by the respondents in this revision.
6. The attention of this Court is invited by the revision petitioner to a decision of this Court in M.V. Ramudu v. B. Bayapu Reddy, . The Court considered the mode and method of service of notice on the defendant by a Commissioner appointed ex parte on an application made by the plaintiff. After considering the provisions contained in Order XXVI, Rule 18 CPC and Order V, Rule 15 CPC, this Court held that the service of notice on the brothers of the petitioner therein cannot be found fault with as the petitioner could not explain as to under what circumstances he was not available in the house. The Court held that the service of notice on the brother of the petitioner was proper service. In the present case also the notice of the first defendant was served on his brother who was available at the spot itself. The said service of notice is proper service. Further, as clear from the affidavit of the second defendant filed in support of the application filed by both the defendants together seeking appointment of a Second Commissioner that the second defendant and her husband are looking after the suit property on behalf of the first defendant. Admittedly not only the second defendant but also her husband were present at the time of inspection of the suit property by the first Commissioner. The report of the first Commissioner also discloses that at the time of inspection, the brother of the first defendant and the husband of the second defendant brought a photographer also to the suit property. This circumstances therefore shows that the brother of the first defendant was acting on behalf of the first defendant. He is an adult member of the family of the first defendant. Service of notice on the adult member of the family of the first defendant is sufficient service. There is no rule that the Commissioner has to serve notice of her visit on the parties to the proceedings at their residence and not at any other place. Though the defendants 1 and 2 jointly filed the petition seeking appointment of the Second Commissioner in the affidavit filed in support of the said application, there is no averment that any prejudice is caused to the defence of the first defendant by the action of the first Commissioner in not personally serving the notice of her visit on the first defendant. No prejudice is also shown to the defence of the first defendant. I am, therefore, of the opinion that just because the notice relating to the visit of the Commissioner was not personally served on the first defendant, as no prejudice is alleged or proved by the defendants by such action of the Commissioner, the report of the first Commissioner cannot be rejected. Further, in the present case, as already pointed out, notice on the adult member of the first defendant, namely, the brother of the first defendant was served by the Commissioner before she commenced the inspection of the suit property. Further, the second defendant and her husband who are looking after the suit property on behalf of the first defendant were actually present at the time of inspection and they have actively participated in the inspection. Therefore, no prejudice is caused in the circumstances of the present case either to the first defendant or to the second defendant. Therefore, the appointment of the Second Commissioner in the impugned order by the trial Court is liable to be set aside.
7. The learned advocate for the respondents has brought to the notice of the Court that the Second Commissioner appointed by the trial Court inspected the suit locality and filed his report. The learned advocate for the revision petitioner contended that the inspection and filing of report by the Second Commissioner are contrary to the interim orders passed by this Court at the time of admitting this revision. On 27-10-2000 this revision petition was admitted by this Court and on the same day, in CMP No. 19812 of 2000 interim suspension of the impugned order was ordered by this Court. It is also clear that the Court permitted communication of the interim suspension order by wire at the cost of the party. The copy of the report of the Second Commissioner was also shown to this Court at the time of hearing of this revision petition. As clear from that report the Second Commissioner was made aware that on 27-10-2000 the present CRP., was coming up for admission and he was also requested to postpone his visit. However, the Commissioner inspected the suit property on 28-10-2000 in the absence of the plaintiff or his Counsel and submitted a report to the Court on 30-10-2000. As the appointment of the Second Commissioner is being set aside, it is needless to point out that the Second Commissioner's report cannot be looked into by the trial Court. Further, as the visit and submission of the report by the Second Commissioner are in violation of the interim suspension order passed by this Court in CMP No. 19812 of 2000, it is an additional ground to point out that the report submitted by the Second Commissioner to the trial Court is bad and cannot be looked into by the Court for any purpose. It is not open for either of the parties to treat the report of the Second Commissioner as evidence in support of their case or to disprove the evidence adduced by the other side.
8. In the result, I allow the revision petition. I set aside the orders in IA No.459 of 1998 and dismissed the said petition.