The Hon’ble Smt. Justice Renuka Yara Civil Revision Petition No.2828 of 2024

Order:

This is a Civil Revision Petition directed against the impugned order passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.939 of 2022 in O.S.No.677 of 2012, dated 16.07.2024, wherein, a petition filed to reject the report dated 18.03.2023 filed by the Advocate Commissioner in I.A.No.939 of 2022 has been closed.

2. Heard Sri C. Kumar, learned counsel, learned counsel for the revision petitioners/defendant Nos.3 to 6 and Sri Nivarthi Mruthyunjaya, learned counsel for the respondent No.1/

defendant No.1.

3. The background facts giving rise to filing of Civil Revision Petition are that the main suit in O.S.No.677 of 2012 was filed by the deceased respondent No.2/plaintiff seeking partition and separate possession against respondent No.1 and the deceased petitioner No.1. Said suit was decreed in the year 2014. There was a need to separate the property by metes and bounds and therefore, petition was filed in I.A.No.939 of 2022 by respondent No.1/ defendant No.1 for appointment of an Advocate Commissioner. Said petition was allowed and an Advocate Commissioner has been appointed to measure the suit schedule property by metes and bounds. Said Advocate Commissioner filed the report on 18.03.2023 after executing the warrant. The petitioners/defendant Nos.3 to 6 opposed the Advocate Commissioner Report on the ground that they have not been issued with notice and therefore, the Advocate Commissioner report is liable to be set aside. Said objection was over-ruled by the learned Trial Court vide impugned order dated 16.07.2024. Aggrieved by the same, the present Civil Revision petition is filed.

4. In grounds of revision, it is pleaded that the Commissioner’s Report is vitiated on account of non-service of notice on the petitioner Nos.2 to 5/defendant Nos.3 to 6, who are legal heirs of deceased petitioner No.1/defendant No.2. Due to non-service of notice to the petitioners, their valuable rights are affected. There is a specific direction by the learned Trial Court to the Advocate Commissioner to issue prior notice to the counsel for the petitioners and the counsel for respondent Nos.1, 3 to 5 through registered post intimating them about the date and time of execution of the commission.

5. In the Advocate Commissioner report, it is mentioned that notice is given to petitioner No.1 and to the counsel and was also called over phone to visit the suit schedule property. It is further mentioned that the counsel for petitioner No.1 reported that the clients are not in touch and she may not attend the said commission. It is further mentioned that the counsel informed that notice of the commission may be given to the party directly and therefore, notice was given to petitioner No.1 through registered post and the same was returned as ‘addressee expired, hence, returned to sender’. A reference is made to the Advocate Commissioner’s report about petitioner No.1 along with his wife and children residing in the ground floor and their absence at the time of execution of the commission but said fact was not noticed by the learned Trial Court and proceeded to observe that there is no pleading of whether petitioner Nos.2 to 5 were residing in the ground floor or not and whether they were present or not when the Advocate Commissioner visited suit schedule property. It is pleaded that there is no allegation about petitioner Nos.2 to 5 not residing in the ground floor. The petitioner No.1 actually died and therefore, the contents of the report about petitioner No.2 residing with his wife and children in the ground floor show bias and that the report is full of falsehoods and therefore, said report needs to be rejected. There is a variance of 5 sq.yds. in the suit schedule property, but, there is no whisper about such variance in the entire report filed by the Advocate Commissioner. Due to variance, according to the petitioners, the report ought