Andhra HC (Pre-Telangana)
Venkateswara Rao And Co. And Ors. vs Bhogavalli Rajeswararao And Anr. on 9 September, 2005
Equivalent citations: 2005(6)ALT137
ORDER A. Gopal Reddy, J.
1. The tenants preferred this revision aggrieved by the order dated 11-8-2005 passed by the Principal Junior Civil Judge, Tadepalligudem in allowing the I.A. No. 1063 of 2005 in RCC No. 11 of 1995 filed under Order XXVI Rule 9 CPC for appointment of Advocate Commissioner to inspect the premises where the landlords are doing business and to note down the physical features.
2. The factual backdrop of the case relevant for the purpose of present proceedings may be stated that respondents/ landlords filed the above RCC for eviction of the tenants on the ground of wilful default and bona fide requirement in which on conclusion of the trial, arguments were heard on 2-11-2001 and posted for further arguments. At that stage landlords filed two applications-I.A. Nos. 2359 and 2633 of 2001 to re-open the RC and to re-call P.W.1 for further examination and they were allowed on 27-4-2002. Later I.A. No. 133 of 2004 was filed by the petitioner/tenants under Order XIII Rule 2 CPC to receive certain documents to substantiate their contention, namely, landlords are in possession of several properties where they are doing their business and do not require suit schedule premises for bona fide requirement. On dismissal of the said application petitioners/tenants carried the matter in revision -- C.R.P. No. 449 of 2004 under Article 227 of the Constitution, wherein this Court allowed the revision and remitted the matter to the lower Court with a direction to the lower Court to permit the petitioners/tenants to take all such further steps in furtherance of rebuttal evidence, and the petitioners/tenants also filed I.A. No. 135 of 2004 to receive further chief-examination of the tenants which was allowed to which they were sufficiently cross-examined. Later landlords filed impugned I.A. for appointment of Commissioner. In spite of tenants contesting the same the lower Court allowed the application appointing Advocate Commissioner only to note down the physical features of the premises where the respondents/landlords and his family members are carrying business in the schedule premises mentioned in the said I .A.
3. Learned Counsel for the petitioners/ tenants vehemently argued that Commissioner cannot be appointed to gather evidence, except to note down the physical features. When the arguments are heard in RCC on 2-11-2001 and posted for reply arguments on 5-11 -2001, landlords filed two applications to re-open the case and re-call P.W.1, which were allowed. After the landlords examined the tenants (sic.), petitioners/tenants led their evidence. When the matter is taken up for arguments, the above I.As. are filed to gather the evidence, which is impermissible in law and placed reliance on the judgment of this Court in Arredla Ram Reddy v. Arredla Alivelamma, .
4. Learned Counsel for the respondents/ landlords do not dispute the proposition that Commissioner cannot be appointed to gather the evidence, but tried to justify the order contending that the tenants filed I.A. No. 135 of 2004 to receive further chief examination in the form of affidavit wherein they enclosed several documents and got marked Exs.B-132 to 210 which necessitated the landlords to file the above I.A. after cross-examination. Further, it is urged that since there is no order affecting the rights of the parties, parties cannot prefer an appeal and revision also cannot be entertained, as the same cannot adjudicate the rights of the parties. Learned Counsel placed reliance on the judgment of the Supreme Court in Central Bank of India v. Gokal Chand, , and this Court in Vishnudas Manga Bhavani v. V. Bhaskar, .
5. In the case of Bhaskar (3 supra) this Court held that whether an application for appointment of the Commissioner under Order XXVI Rule 9 CPC was belated or not depends on the facts of each case.
6. It is settled law that under Section 20 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 an appeal does not lie against an order on application for appointment of Commissioner, since it does not affect the rights and liabilities of the parties. (See Laxmi Cycle Importing Co. v. Masood Abdul Khader (1978 (2) ALT 405) and also Central Bank of India v. Gokul Chand (2 supra)). Appeal under Section 20 lies only where it affects the rights of the parties by virtue of allowing/dismissal of interlocutory application.
7. This Court in Arredla Ram Reddy v. Arredla Alivelamma, (1 supra) held that when physical features of the suit schedule properties are hardly of any relevance, in a suit for permanent injunction, the necessity to appoint a Commissioner does not arise. The resultant report is prone to be used as a material, to support the plea of possession etc. Such a course of action is impermissible in law.
8. Strong reliance was placed by the learned Counsel for the respondents/landlords in Vishnudas Manga Bhavani v. V. Bhaskar, (3 supra) for the proposition that appointment of Commissioner depends on each case. In view of petitioners/tenants filing several documents necessitated the landlords to file such application only to note down physical features. The Court only appointed Commissioner to note down the physical features who already submitted the report in the lower Court.
9. The Supreme Court in Surya Dev Rai v. Ram Chander Rai, , held that Article 227 is not available to correct mere errors of fact or law but available only when the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and a grave injustice or gross failure of justice has occasioned thereby and also held though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and tribunals within the bounds of their authority and not for correcting mere errors. The Apex Court also held that supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy of appeal or revision is available to the person aggrieved.
10. Admittedly by appointing an Advocate Commissioner the lower Court has not decided the rights of the parties as such but only proceeded to decide whether the said report will be taken note to pass the orders, which is the matter yet to be decided by the Rent Controller based upon the objections, if any, filed by the petitioners/tenants.
11. By the impugned order the Rent Controller only appointed an Advocate Commissioner to note down the physical features but nothing else, for which the petitioners/tenants are necessarily given an opportunity to file objections and if necessary they will be permitted to cross-examine the Commissioner. It is for the landlords to substantiate bona fide requirement by way of other evidence but not based upon the report of the Commissioner who simply noted down the physical features of the premises where the landlord is carrying on business presently nor it is province of the Commissioner to say that the premises which are under occupation of the landlord is hardly sufficient or required a bigger accommodation etc. which fact has to be proved de hors the report filed.
12. Having regard to the nature of the order passed, which does not have the effect of adjudicating the rights of the parties, and as per the decision in Surya Dev Rai (4 supra) this Court is of the opinion that there are no grounds for the petitioners to question the said order at this stage, since it is always open for them to question the validity of the impugned order including the report filed by the Advocate Commissioner, in case ultimately the main RC is decided against the petitioners/tenants based upon the report of the Advocate Commissioner, if any, in an appeal preferred by them.
13. In view of restrictions spelled out by the Supreme Court for exercise of jurisdiction under Article 227 in the case of Surya Dev Rai (4 supra), the impugned order does not require any interference at this stage since the petitioners are having sufficient opportunity to question the correctness of the same, as referred to above. Liberty is granted to the petitioners to raise all the grounds available to them in R.C. by filing objections to the Commissioner's report. The lower Court necessarily has to consider and pass appropriate orders, whether such a report can be received as evidence or not.
14. Revision petition is accordingly disposed of. No costs.