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2022 DIGILAW 816 (AP)

Ponnuru Sambasiva Rao v. Pamarthi Nageswara Rao

2022-08-30

V.R.K.KRUPA SAGAR

body2022
ORDER: This civil revision petition is filed under Article 227 of the Constitution of India assailing the order dated 08.03.2019 passed by learned I Additional Junior Civil Judge, Machilipatnam in I.A.No.248 of 2013 in O.S.No.166 of 2013. 2. Despite notice, none appeared for respondent. Learned counsel for revision petitioner submitted arguments. 3. The point for determination is: “Whether there is gross miscarriage of justice requiring interference of this Court? 4. Point: Sri Ponnuru Sambasiva Rao filed O.S.No.166 of 2013 concerning certain immovable property seeking recovery of possession and a mandatory injunction for removal of certain constructions and for a permanent injunction as a measure of his protection and for costs and for such other reliefs. During pendency of the suit, he also filed I.A.No.248 of 2013 seeking for appointment of an advocate commissioner for certain purposes. The learned trial Court dismissed that forcing the plaintiff therein/petitioner herein to approach this Court by way of Civil Revision Petition No.2208 of 2015. On 19.12.2018 this Court allowed the revision and gave certain directions to the learned trial Court and the same is extracted below: “…the lower Court is directed to appoint an Advocate Commissioner and fix his fee and time frame for the execution of the warrant etc.” 5. Acting upon that direction, on 22.02.2019 the learned trial Court appointed an advocate commissioner and the warrant of appointment is extracted below: “You are appointed as an Advocate Commissioner to visit and measure the plaint schedule property with the assistance of Mandal Surveyor in pursuance of the registered sale deed dated 24.11.2009 and note down the encroachments on the North-East corner of the schedule property and also existing physical features. Your fee is fixed at Rs.3,000/- directly payable by the petitioners. You are hereby directed to issue notice to both parties before visiting the schedule property and answer the work memos of both parties. You are hereby directed to file report on or before 08.03.2018.” 6. The above warrant of appointment of advocate commissioner would show that the advocate commissioner was to return the warrant along with his report on or before 08.03.2019. You are hereby directed to file report on or before 08.03.2018.” 6. The above warrant of appointment of advocate commissioner would show that the advocate commissioner was to return the warrant along with his report on or before 08.03.2019. On that date which is 08.03.2019, the learned advocate commissioner filed a memo before the learned trial Court and the contents of memo are extracted below: “It is respectfully submitted that, the Hon’ble Court appointed an Advocate Commissioner for execution of warrant the Hon’ble Court directed with the assistance of Mandal Surveyor but the Mandal Surveyor not available. I did not execute the warrant. Hence I returned the warrant dated 22.02.2019. Hence this memo.” 7. On receiving such memo, the learned trial Court passed the order, which is extracted below: “The Advocate Commissioner returned the warrant by stating that he could not execute the warrant since the Mandal Surveyor was not available. As per the order of the Hon’ble High Court the Advocate Commissioner was appointed on 22.02.2019 with a direction to execute the warrant and shall file his report by 08.03.2019 positively. The Hon’ble High Court in the order directed this Court to fix time frame for execution of the warrant. In spite of giving time till today the Advocate Commissioner failed to execute the warrant. The petitioner did not produce any material before the Court about the steps taken by him for execution of the warrant by the Advocate Commissioner. In the light of above circumstance the petition is closed.” 8. It is this order of the trial Court that was passed on 08.03.2019 that is challenged in this revision. In the grounds of revision, the earnest but fierce submission of the learned counsel for revision petitioner is that mere non-availability of a Mandal Surveyor at a given point of time cannot be a ground to close the proceedings of advocate commissioner and the learned trial Court ought to have granted a little more time and the valuable rights of the parties are at stake by an order that was passed without regard to facts and law and therefore, learned counsel seeks to set aside. 9. 9. Having considered the entire material on record and the submissions of the learned counsel, it shall be seen that when this Court directed the learned trial Court to appoint an advocate commissioner, it directed the learned trial Court to fix a time frame for the advocate commissioner to execute the warrant. Be it noted that this Court has not fixed any time frame for the trial Court for completion of task by the advocate commissioner. Thus, full liberty was granted to trial Court to have the work done in the manner that is required under law and to its own satisfaction. Instead of utilizing this liberty granted by this Court, the learned trial Court seems to have no aptitude to consider the file appropriately and therefore, it closed the proceedings in I.A.No.248 of 2013 for a whimsical reason. The impugned order shows that the trial Court was more concerned with time than with the substance, which is an incorrect approach. The inability of advocate commissioner to execute the warrant arose due to absence or non-availability of a Mandal Surveyor. If a Mandal Surveyor at a particular place was not available, it was very well within the realm of the trial Court to find out another Mandal Surveyor of another Mandal or Surveyor from the District. Instead of doing it, its simply closed the proceedings causing any amount of injustice and inconvenience to the parties when the advocate commissioner returned the unexecuted warrant on 08.03.2019. The impugned order of the learned trial Court indicates non-granting any more time to the revision petitioner but held that he did not take any steps for execution of the warrant and it was with that reason, it closed the proceedings. Thus, it not only failed to grant any time to the revision petitioner to find out to whether anyone else was available to assist the advocate commissioner, but also failed itself in not finding an obligation on its shoulders to see that the process of the Court is for the benefit of the citizens and not for their inconvenience and sufferance. It is that indiscretion on the part of the trial Court that forced the revision petitioner to come up to this Court invoking under Article 227 of the Constitution of India. It is that indiscretion on the part of the trial Court that forced the revision petitioner to come up to this Court invoking under Article 227 of the Constitution of India. This Court has to record that the impugned order caused fundamental injustice to the revision petitioner and goes against the theme and substance of the order of this Court earlier made wherein advocate commissioner was directed to be appointed by the learned trial Court. The point is answered in favour of the revision petitioner. Therefore, the impugned order dated 08.03.2019 is liable to be set aside. 10. In the result, the Civil Revision Petition is allowed setting aside the order dated 08.03.2019 passed by learned I Additional Junior Civil Judge, Machilipatnam in I.A.No.248 of 2013 in O.S.No.166 of 2013. The said I.A.No.248 of 2013 stands reopened. Learned trial Court shall find out from the parties about the availability or otherwise of one or other Mandal Surveyor or Surveyor at the District level and take further steps and grant appropriate time for an advocate commissioner to take the assistance of the Surveyor and execute the warrant as is required under law and in the manner that serves the justice in all aspects. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.