Andhra HC (Pre-Telangana)
Vishnudas Manga Bhavani And Anr. vs Vooturi Bhaskar And Ors. on 12 July, 1993
Equivalent citations: 1993(2)ALT589
ORDER Parvatha Rao, J.
1. This Civil Revision Petition is filed questioning the order of the learned Subordinate Judge at Jagtial in I.A.No. 651/92 in O.S.No. 14/85 dt. 31-12,-92 rejecting the said I.A. filed under Order 26 Rule 9 of the Civil Procedure Code by the petitioners herein for appointing a Commissioner " to make local inspection of the suit schedule lands and investigate into the existence of two oil engines, two electric motors and four pipelines to irrigate the suit schedule lands and area of the suit lands cultivated and the age of turmeric and chilli crops" etc.
2. Notice before admission was ordered in this Civil Revision Petition on 21-1-93. Mr. Y.N. Lohitha filed his appearance for the respondents. On 3-7-93 while directing the CRP to be posted for admission on 12-7-93. I made it clear that the matter would be disposed of or that- day after hearing both sides. Accordingly, I have taken up this CRP for final hearing itself.
3. The learned Subordinate Judge dismissed the IA observing that normally the appointment of Commissioner to make local inspection would not be refused as it would "help the court to appreciate the evidence properly but that as the application was filed after the evidence on the plaintiffs' side was closed and after the examination of 3 witnesses on the defendants' side, it would amount to "fishing out the evidence" which was not the purpose of Order 26 CPC. The learned Subordinate Judge relied on the decision of a learned Single Judge of this Court in CRP No. 555/92 dt. 27-2-92 (Bandi Alikhja Mohinuddin v. Basheeruddin). Significantly, the learned Subordinate Judge also observed that the appointment of Commissioner would now establish whether the evidence produced by the parties was correct or not and that therefore, in the circumstances it would amount to collection of evidence and in that view of the matter, dismissed the LA.
4. I am afraid the order of the learned Subordinate Judge is vitiated by illegalities and material irregularities. It is not in dispute that the ground position which was sought to be ascertained by appointment of the Commissioner arose only during the rainy season of 1992 and the present application was filed on 4-12-92. The learned counsel for the respondents points out that the said application was made after the examination of D.Ws.2 and 3 on 1-12-92. The lower Court also missed the fact that it was only during the course of oral evidence adduced on the plaintiffs' side that it was asserted that in the rainy season of 1992 the plaintiffs laid 4 pipelines and also installed two electric motors with pumpsets and two oil engines and thereafter the need to appoint the Commissioner for verification of the ground position arose because of the denial by the witnesses on the defendants side subsequently that in the suit schedule lands there were no pipelines nor any electric motors with pumpsets or engines installed. On these facts, I do not understand how the learned Subordinate Judge could conclude that the application for appointment of the Commissioner was belated.
5. The learned Subordinate Judge was right in observing that "the stage of the case" was "also to be taken into consideration for appointing the Commissioner to make local inspection", but he failed to keep in view that the question whether an application for the appointment of the Commissioner under Order 26 Rule 9 was belated or not depended on the facts of each case. In this Case, I am clearly of the view that it cannot be said that it was belated-soon after it was deposed on behalf of the defendants that there were no pipelines, electric motors, pump sets and engines, the application for appointment of a Commissioner for verification of the ground position was filed.
6. As to what would be the probative value of the findings by the Commissioner is a different matter into which it would not be appropriate for me to enquire at this stage of the matter. It would be for the learned Subordinate Judge to weigh the same at the proper time.
7. In this view, I am supported by the judgment of Jagannadha Rao, J. as he then was, in N. Savitramma v. B. Changa Reddy, 1988 (1) ALT 353, in that case also an application made for appointment of the Commissioner under Order 26 Rule 9 of the CPC was dismissed by the lower court stating that in view of the petition and counter therein, there did not appear to be any dispute between the parties which called for any appointment of a Commissioner for local investigation. Interestingly in that case, the opposite contention was advanced that the Commissioner should not be appointed for nothing the physical features till after the evidence was led and this was rejected by the learned judge. The learned Judge, after referring to various decisions of this Court cited before him finally held as follows:-
"In view of the aforesaid binding authority K. Kutumba Rao v. M. Venkata Subba Rao, , it is clear that an Advocate - Commissioner could be appointed to make a local investigation either under Order 26, Rule 9 or even under Order 39, Rule 7 (1) (a), if the circumstances of the case deem it necessary for the purpose of nothing the physical features of any land or property. Such a Commissioner could be appointed ex parte even without notice to the opposite party. However, after appointment of the Commissioner notice has to be given by the Court as well as the Commissioner to the opposite party under Order 26 Rule 18 C.P.C."
The learned Judge further observed:
"It is in fact the duty of the Courts to see that false evidence is not adduced and it is also its duty to unravel falsehood."
On the facts of that case, it was found that the Commissioner should be appointed even though it was at an early stage of the suit. The decision of this Court in Bandi Alikhja Mohinuddin v. Basheeruddin, CRP 555/92, dt.27-2-92, turned on the facts of that particular case. There the Commissioner was sought to be appointed for spot inspection of the suit land to note its physical features and report the same to the Court, long after the suit was instituted. It did not relate to anything which took place just before the filing of the application for appointment of a Commissioner.
8. In Chintapatla Arvind Balm v. K. Balakistamma, , a learned Single Judge of this Court held that dismissal of a petition for appointment of a Commissioner under Order 26 Rule 9 was 'Case decided' and therefore a revision petition Under Section 115 of the CPC was maintainable; he also hold:
"If the court declines to appoint a Commissioner, it may result in the perpetration of gross injustice if the relief is denied to the aggrieved litigant where it is most needed."
9. In view of the peculiar facts of the present case, I am satisfied that the order of the learned Subordinate Judge impugned in this CRP is vitiated by illegalities and material irregularities and has to be set side; it would occasion a failure of justice if allowed to stand. As it is, because a Commissioner was not appointed in December, 1992 the area of the suit lands cultivated and the age of the turmeric and chilli crops said to be existing at that time could not be ascertained and that part of the prayer in the I.A., had become infructuous.
10. The order of the learned Subordinate Judge at Jagtial in I.A.No. 651 /92 is therefore set aside. The learned Subordinate Judge at Jagtial is directed to appoint an Advocate - Commissioner to inspect the suit schedule lands for the purpose of ascertaining whether oil engines, electric motors and pipelines exist therein and to report in that regard within two weeks from the date of such appointment.
11. The Civil Revision Petition is allowed accordingly. No costs.