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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. Venkata Ramana, J.
Yelavarthy Devendra Prasad – Petitioner
versus
Avva Pushpa Latha and Ors. – Respondents
C.R.P. No.7425 of 2018
Decided on 17.9.2019
Counsel for the Parties:
For the Petitioner: Mr. K. Sarva Bhouma Rao, Counsel
IMPORTANT POINT
There cannot be hard and fast rule relating to appointment of Advocate Commissioner and facts in given case should be taken into consideration.
Headnote:
Civil Procedure Code,1908 – Order XXVI Rule 4 read with 141 – Appointment of Advocate Commissioner – Suit for relief of declaration and for permanent injunction – There cannot be hard and fast rule relating to appointment of Commissioner and facts in given case should be taken into consideration – Basing on facts of case when witness is found to be important witness to defendants to rely and to canvass their claim in suit, appointment of Commissioner by trial Court cannot be found fault with – Sufficient reasons are assigned in order under revision and they do not call for any interference – Civil Revision Petition dismissed.
Held: In the light of the above circumstances, there is justification to appoint a commissioner as sought. Rightly, in this context V.Ramanaidu and another v. Smt.V.Ramadevi 2018 (3) ALT 58 is relied on, by the respondents. In this ruling, it was observed that there cannot be hard and fast rule relating to appointment of commissioner and the facts in the given case should be taken into consideration. In Para 25 of this ruling, it was observed as under:
“25. …………….There is no hard and fast rule of in which case commissioner to be appointed and in which it is not, by the Court of its own without even application, but for what are the illustrative matters referred by the Apex Court in Salem Bar Association case II in 2005, it is in complicated factual matters involved Court generally record evidence at least of main witnesses and appoint advocate commissioner to record evidence of other witnesses more particularly from pressure of work and work load with huge pendency in almost all courts.”
Thus basing on the facts of the case when the witness is found to be important witness to the defendants to rely and to canvass their claim in the suit, appointment of commissioner by the trial Court cannot be found fault with. Sufficient reasons are assigned in the order under revision and they do not call for any interference.
In the result, this Civil Revision Petition is dismissed without costs. (Paras 14, 15 and 16)
Result: Civil Revision Petition dismissed.
JUDGMENT
M. Venkata Ramana, J.—This Civil Revision Petition is directed against orders in I.A.No.67 of 2018 in O.S.No.326 of 2004 of the Court of learned II Additional Senior Civil Judge, Vijayawada, dated 08.11.2018.
2. The first plaintiff in the suit is the petitioner. The defendants in the suit filed I.A.No.67 of 2018 under Order XXVI Rule 4 CPC read with 141 CPC to appoint an advocate commissioner to examine the third defendant Smt.Garikapati Jayalakshmi, W/o.Koteswara Rao and to record her evidence.
3. The suit in O.S.No.326 of 2004 is filed for relief of declaration that the petitioner is the absolute owner of the plaint schedule property and for permanent injunction restraining the respondents 2 to 6 from in any way interfering with peaceful possession and enjoyment of plaint schedule property.
4. The dispute in the suit is in respect of an extent of Ac.2.00 comprised by Ac.1.68 cents in RS No.69/2 and Ac.0.32 cents in RS No.87 in Ambapuram village, Vijayawada Rural (M), Krishna District. The first respondent is represented by his GPA in the suit.
5. In support of the above petition, the GPA of respondents 4 to 14 filed an affidavit in the trial Court stating that examination of Smt.Garikapati Jaya Lakshmi(D3) is absolutely necessary in this case as a witness on their behalf for just decision in as much as the property in dispute originally belonged to her, who executed a GPA in favour of one Sri Alluri Nageswara Rao. It was also stated in the affidavit filed in support of the petition that Smt.Garikapati Jaya Lakshmi, represented by GPA sold the disputed property in favour of defendants No.15 and 16 from whom, defendants 4 to 14 purchased the same. Stating that Smt.Garikapati Jaya Lakshmi is residing at HMT Nagar, Nacharam, Hyderabad, and is ready to depose in the suit. Since she is unable to attend the Court due to severe knee pain and disk collapse, it is sought to appoint a commissioner as requested.
6. On behalf of the petitioner, opposing the above petition a counter was filed in the trial Court mainly contending that Smt.Garikapati Jaya Lakshmi, though has been third defendant in the suit as well as in O.S.No.185 of 2017, she remained ex parte in both the suits and without specifically stating on whose behalf she has to be examined as a witness, without setting out nature of evidence to be brought out from her, the petition as filed is impermissible. While referring to the deposition of D.W.1 in the suit and in as much as defendants 4 to 14 could not seek relief for cancellation of sale deed marked Ex.A1 as null and void, it is requested to dismiss this petition. It was also stated in the counter that ill-health attributed to the proposed witness is false. It is further stated that the petition is filed only to protract the matter unnecessarily.
7. Upon considering the rival contentions of the parties as well as the material on record, the learned trial Judge by the impugned order has chosen to accept the request of the respondents and appointed an advocate commissioner to examine and record the deposition of Smt.Garikapati Jaya Lakshmi.
8. In this revision petition, it is strenuously contended for the petitioner that GPA attributed to Smt.Garikapati Jaya Lakshmi is not filed in the suit and any evidence to be brought out from her, in the absence of GPA attributed to her, cannot be looked into, in terms of Section 91 of Evidence Act nor her oral evidence could be a right substitute for the documentary evidence. It is further contended that the proposed witness is not entitled to speak to any of the sale transactions concerned to the suit and that too when she remained ex parte in the suit. While contending that the material on record makes out that she would be a better witness for the petitioner than for the respondents, it is stated that appointing an advocate commissioner to examine her is improper.
9. On behalf of the respondents, the order under revision is supported pointing out the imminent necessity to examine th
