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Andhra Pradesh High Court
Judges : S.PARVATHA RAO
Vishnudas Manga Bhavani - Appellant
Versus
Vooturi Bhaskar - Respondent
Decided On : 07-12-93
ORDER 26 RULE 9 CPC - APPOINTMENT OF COMMISSIONER - FACTUAL CIRCUMSTANCES - RELEVANCE - COURT'S DISCRETION - JUDICIAL REVIEW:
Fact of the Case:
The petitioners filed a Civil Revision Petition challenging the order of the subordinate judge rejecting their application for the appointment of a commissioner to inspect the suit schedule lands and investigate the existence of oil engines, electric motors, pipelines, and the area of the suit lands cultivated. The subordinate judge dismissed the application on the grounds that it was filed after the evidence on the plaintiffs' side was closed and after the examination of witnesses on the defendants' side, and that it would amount to "fishing out the evidence." The petitioners argued that the application was not belated as the ground position sought to be ascertained arose only during the rainy season of 1992 and the application was filed soon after the defendants denied the existence of the pipelines, electric motors, and engines.
Finding of the Court:
The court held that the order of the subordinate judge was vitiated by illegalities and material irregularities. The court found that the application for the appointment of the commissioner was not belated as it was filed soon after the defendants denied the existence of the pipelines, electric motors, and engines. The court also found that the subordinate judge failed to consider the fact that the question of whether an application for the appointment of the commissioner was belated or not depended on the facts of each case.
Issues: 1. Whether the application for the appointment of the commissioner was belated? 2. Whether the subordinate judge erred in dismissing the application on the grounds that it would amount to "fishing out the evidence."
Ratio Decidendi: The court held that the subordinate judge erred in dismissing the application for the appointment of the commissioner. The court found that the application was not belated as it was filed soon after the defendants denied the existence of the pipelines, electric motors, and engines. The court also found that the subordinate judge failed to consider the fact that the question of whether an application for the appointment of the commissioner was belated or not depended on the facts of each case. The court further held that the subordinate judge erred in dismissing the application on the grounds that it would amount to "fishing out the evidence." The court found that it was the duty of the courts to see that false evidence was not adduced and it was also its duty to unravel falsehood.
Final Decision: The court allowed the Civil Revision Petition and set aside the order of the subordinate judge. The court directed the subordinate judge 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.
( 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. 1 made it clear that the matter would be disposed of on 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 vs. 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 I. A.
( 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 so ught 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 amclearly 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
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