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2016 Supreme(AP) 623
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
Sharada Bai and Ors. – Appellants
Vs.
Satyanarayana Peeti and Ors. – Respondents
C.R.P. Nos. 5069 and 5183 of 2016
Decided On : 28-11-2016
For the Appellant : Manjiri S. Ganu
For the Respondent: O. Manohar Reddy
Headnote:
Civil Procedure Code - Section 75 read with Order 20 Rule 12/18, 54, 151 and 30 - Indian Evidence Act - Section 165 - Suit was filed for partition and separate possession of plaint schedule property into two equal shares maintained by sole plaintiff against the three defendants and in the course of contest by defendants they stated that all the properties not included in the plaint schedule to be partiable thereby the properties shown in the written statement schedule also to be included as partiable properties. Pursuant to which the suit was decreed including in the written statement schedule one of the items as Item e of the written statement besides that of plaint schedule - Plaintiffs vis-à-vis. the defendants sole plaintiff since died pending suit, his legal representatives plaintiffs 2 to 6 were impleaded including the minors represented by the 2nd plaintiff as next friend - Defendants against the preliminary decree are still pending before this Court with direction for proceeding with ascertainment of profits and division of properties, but for stay in passing of final decree to some extent - It is pursuant to the extent of no stay granted of the trial Courts preliminary decree sought for passing of final decree by the plaintiffs and some of the defendants by filing two applications commissioner was appointed for the two purposes - Commissioner submitted report so far as the division of properties concerned - Ascertainment of properties is not the subject matter of the revisions - It is pursuant to the report of the commissioner dividing the properties into equal shares taken into consideration of good or bad qualities objections were filed by some of the defendants - Said defendants who filed objections to the report of the commissioner showing division of properties sought for examination of the commissioner before the lower Court by filing applications applications by orders – Held, right of the party to call for commissioner to be examined on their side; whereas, Rules 13 and 14 no way provide any such right to any party and in view of the legislative conspicuous silence specifically no right can be conferred to any party to claim by any party as of right and same is the conclusion in fact rightly arrived by the learned single Judge of this Court - Court which is paramount and available to summon as a Court witness by reading with several other provisions of the Rules 13 and 14 of Order 26, though there is on any right of a party to claim as if in Rule 10 of Order 26 that no way takes away the power of the Court to consider if at all necessary even in any partition final decree proceedings from the report of the commissioner with reference to the objections of the parties to call for the commissioner as a Court witness to cause examine with a right of cross examination to both parties - Petitions are disposed of directing the trial Court irrespective of dismissal of the earlier petitions on the application of the parties to call for the commissioner to be examined with reference to the report in relation to the division of properties for the parties have no such right to consider the objections of parties to the report and if necessary to re-entrust the warrant to the commissioner and after hearing where found such necessity does not arise and still there is any necessity of any cloud to be cleared by the commissioner to cause examine the commissioner as a Court witness, with right of cross examination to both parties - There shall be no order as to costs – Ordered Accordingly.
B. Siva Sankara Rao, J.
1. These two revision petitions are arising outcome of the respective orders dated 29.08.2016 of the IX Additional Chief Judge, City Civil Court, Hyderabad, passed in I.A. No. 785 of 2016 in I.A. No. 344 of 2008 and I.A. No. 499 of 2016 in I.A. No. 794 of 2016 in O.S. No. 7 of 2001, which are the applications filed to examine advocate commissioner.
2. The suit was filed for partition and separate possession of plaint schedule property into two equal shares maintained by sole plaintiff against the three defendants and in the course of contest by defendants 1 to 3, they stated that all the properties not included in the plaint schedule to be partiable, thereby, the properties shown in the written statement schedule also to be included as partiable properties. Pursuant to which the suit was decreed on 23.08.2004 including in the written statement schedule, one of the items as Item 'e' of the written statement besides that of plaint schedule. The plaintiffs' vis-à-vis. the defendants' viz. sole plaintiff Satyanarayana Peeti since died pending suit, his legal representatives plaintiffs 2 to 6 were impleaded including the minors represented by the 2nd plaintiff as next friend.
3. The first appeals maintained by the plaintiffs' vis-à-vis. the defendants' against the preliminary decree are still pending before this Court with direction for proceeding with ascertainment of profits and division of properties, but for stay in passing of final decree to some extent. It is pursuant to the extent of no stay granted of the trial Court's preliminary decree, sought for passing of final decree by the plaintiffs and some of the defendants by filing two applications in I.A. Nos. 344 of 2008 and 499 of 2016. Therein an advocate commissioner was appointed for the two purposes viz. (i) ascertainment of the profits by conducting enquiry as contemplated under Order 20 Rule 12/18 of C.P.C. (ii) division of the properties. The commissioner submitted report so far as the division of properties concerned. Ascertainment of properties is not the subject matter of the revisions. It is pursuant to the report of the commissioner dividing the properties into equal shares taken into consideration of good or bad qualities objections were filed by some of the defendants. Said defendants, who filed objections to the report of the commissioner showing division of properties, sought for examination of the commissioner before the lower Court by filing applications in I.A. No. 785 of 2016 in I.A. No. 344 of 2008 and I.A. No. 499 of 2016 in I.A. No. 794 of 2016 respectively. Those, applications by orders dated 29.08.2016 were ended in dismissal.
4. The observations in the result of the two applications ended in dismissal is one and the same by referring to two single Judge expressions of this Court in Damodar Reddy (died) per LRs and anothers v. M. Mohan Reddy and others 2006 (5) ALD 735 : AIR 2007 AP 31, and Karri Marriyamma and another v. Penumatcha Ramamma and another (2007) 1 ALD 127
5. The observations in the impugned dismissal orders covered by the two revisions were that since the Commissioner's report is forms part of Court record as is evident from Order 26 Rule 9 and 10 CPC, the necessity of examination arises only parties dispute correctness of report and thus, mere fact that the Commissioner was not examined, does not disentitle the Court from considering the report into account. Whereas, so far as preliminary decree enforcement in seeking to pass final decree and appointment of Commissioner is concerned, it is for the Court to pass final decree to bring about just and equitable partition of the properties and no purpose would be served by subjecting cross examination of the Commissioner apart from not contemplated in the partition suits where the Commissioner discharges functions of the Court and as a matter of convenience, the work is entrusted to the Commissioner treating as officer of the Court and legislature did not provide to
