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2012 DIGILAW 517 (AP)

Javer Ben N Shah v. Vijaya Lakshmi Sharma

2012-06-15

C.V.NAGARJUNA REDDY

body2012
Judgment :- This civil revision petition arises out of order, dated 06.03.2012, in I.A.No.124 of 2012 in O.S.No.1829 of 2008, on the file of the learned III Additional Junior Civil Judge, City Civil Court, Hyderabad. At the hearing, there is no representation for the petitioner. I have heard Sri Chintala Ramesh, learned counsel for respondent No.1, and perused the record. Respondent No.1 filed the above-mentioned suit for mandatory injunction. The petitioner is defendant No.1 in the said suit. At the instance of the petitioner, an Advocate Commissioner was appointed to note down the physical features of the suit schedule property. The Advocate Commissioner has submitted her report. The petitioner filed I.A.No.124 of 2012 seeking to summon the Advocate Commissioner for confronting her with her report. This application was dismissed by the lower Court. After hearing the learned counsel for respondent No.1 and perusing the reasons contained in the order of the lower Court, I am of the opinion that the lower Court has failed to exercise its discretion properly. The learned Junior Civil Judge ignored the express provisions of sub-rule (2) of Rule 10 of Order XXVI under which the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record and the Court or with the permission of the Court, any of the parties to the suit may examine the Advocate Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or to his report, or as to the manner in which he has made the investigation. The learned Judge has failed to understand the true purport of Rule 10(2) of Order XXVI CPC. The reasons given by the lower Court for rejecting the petitioner’s application are hard to decipher. As the petitioner has a right to examine the Advocate Commissioner, the lower Court has committed a serious error in rejecting his application. For the above-mentioned reasons, the order in I.A.No.124 of 2012 is set aside and the civil revision petition is allowed. The lower Court shall dispose of the suit within a period of three months from the date of receipt of a copy of this order. As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.2169 of 2012 shall stand disposed of as infructuous.