Polamreddy Venkateswara Reddy Vs Gunturu Padmavathi

Petition under Article 227 of the Constitution of India, Civil Revision Petition aggrieved by the Order dated 29-07-2024 Passed in lA No. 25 of 2024 in I.A.No. 419 of 2023 in O.S. No. 64 of 2023 by the Hon'ble I Additional Civil Judge, (Senior Division) Nellore.

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Between:

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Polamreddy Venkateswara Reddy, S/o Bhagawan Das Reddy, Age 46 years, OccBusiness, R/o. D.No. 28-2-1156, 1st Street, Srinivasa Nagar, Mypadu Road, Nellore City, Andhra Pradesh.

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Tummagunta Seshaiah,, S/o Late Narayana Swamy, Age 56 years, Occ- Business, R/o. D.No. 1-2-43, Mypadu Road, Nellore City, Andhra Pradesh.

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...Petitioners

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AND

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Gunturu Padmavathi, W/o Late G.V.S.Subramanyam, Age 77 years, OccHouse Wife, R/o. D.No. 16, 3/193, Madhavapathivan Street, Nellore city, Andhra Pradesh.

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...Respondent

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lA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S. No. 64 of 2023 pending on the file of Hon'ble I Additional Judge, (Senior Division) Nellore.

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Counsel for the Petitioners:SRI V NITESH

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Counsel for the Respondent: SRI PSP SURESH KUMAR

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The Court made the following order:

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APHC010012052025

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S

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3327] (Special Original Jurisdiction)

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WEDNESDAY, THE THIRD DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CIVIL REVISION PETITION NO: 130/2025

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Between:

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1.POLAMREDDY VENKATESWARA REDDY, S/0 BHAGAWAN DAS REDDY, AGE 46 YEARS, OCCBUSINESS, R/0. D.NO. 28-2-1156, 1ST STREET, SRINIVASA NAGAR, MYPADU ROAD, NELLORE CITY, ANDHRA PRADESH.

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2.TUMMAGUNTA SESHAIAH, S/0 LATE NARAYANA SWAMY, AGE 56 YEARS, OCC- BUSINESS, R/0. D.NO. 1-2-43, MYPADU ROAD, NELLORE CITY, ANDHRA PRADESH.

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...PETITIONER(S)

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AND

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1.GUNTURU PADMAVATHI, W/o Late G.V.S.Subramanyam, Age 77 years, Occ- House Wife, R/o. D.No. 16, 3/193, Madhavapathivan Street, Nellore city, Andhra Pradesh.

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...RESPONDENT

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Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to present this Civil Revision^Petition aggrieved by the Order dated 29-07-2024 Passed in lA^No.25of 2024 in I.A.No. 419 of 2023 in O.S. No. 64 of 2023 by the Hon'ble I Additional Senior Civil Judge Nellore.

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lA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S. No. 64 of 2023 pending on the file^ofHon'ble I Additional Senior Judge Nellore, and pass

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SRK, J CRP No. 130 of2025

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Counsel for the Petitioner(S):

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1.VNITESH

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Counsel for the Respondent:

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1.PSPSURESH KUMAR

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The Court made the following:

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

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CIVIL REVISION PETITION NO: 130 of 2025

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ORDER:

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The petitioners/defendant Nos.1 and 2 filed the present Revision Petition, challenging the Order, dated 29.07.2024^passed in I.A.No.25 of 2024 in I.A.No.419 of 2023 in O.S.No.64^of2023 by the learned I Additional Civil Judge (Senior Division),^Nellore, (hereinafter referred to, as ‘the Trial Court’), whereby and whereunder, the Trial Court dismissed I.A.No.25 of^2024filedby the petitioners/defendants under Order XXVI Rule 9^oftheCode of Civil Procedure, 1908 (for brevity ‘CPC’) seeking for reentrustment of warrant to the same Advocate-Commissioner^to revisit the schedule property for measurement of properties^with the assistance of Surveyor.

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Revision Petitioners herein are petitioners/defendant Nos.1 and 2, and respondent herein is respondent/plaintiff, in I.A.No.25 of 2024 in O.S.No.64 of 2023. Parties in^thepresent Revision Petition are hereinafter referred to, as they^werearrayed before the trial Court.

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Plaintiff filed O.S.No.64 of 2023 on the file of the learned I Additional Senior Civil Judge, Nellore against the defendant Nos.1 to 3 seeking the reliefs of (i) Declaration^and Recovery of Possession, (ii) Mandatory Injunction for^removalof shed raised by defendant Nos.1 and 2, (iii) Recovery of damages/ mes 3 profits, (iv) Mandatory Injunction for removal of poles erected and zinc sheets and flexies placed on the ground^tothe East of item Nos.2 and 3 of schedule property, (v)^Permanent Injunction restraining the defendant Nos.1 and 2 and^theirmen and agents from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule item-3 property in any manner from making any illegal constructions obstructing free passage of the plaintiff from Mypaud Road to the plaint schedule item-3 property, and (vi) Permanent Injunction restraining 3 defendant/The Commissioner, Nellore Municipal Corporation from granting any approval for making any construction by defendant Nos.1 and 2. The defendants filed written statement and the suit is at the stage of trial.

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During the pendency of suit proceedings before the Trial Court, plaintiff filed I.A.No.419 of 2023 in^{O.S.No.64of2023} under Order XXVI Rule 9 and Section 151 of CPC praying^the Court to appoint an Advocate-Commissioner to note down the

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physical features of the plaint schedule property and to take photographs of the plaint schedule property after issuing^notices to both parties and to file report.

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The Trial Court, vide Docket Order, dated 10.05.2023 allowed I.A.No.419 of 2023 in O.S.No.64 of 2023, appointing^one Sri P.Vivek, Advocate, Nellore, as Advocate-Commissioner, directing him to measure the plaint schedule properties^andalso to note down its physical features. Learned AdvocateCommissioner was further directed to return the warrant^along with report, photographs and rough sketch.

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Accordingly, the learned Advocate-Commissioner executed the warrant on 20.05.2023 by issuing notices^to both parties. The Advocate-Commissioner filed Report on^27.09.2023 before the Trial Court, stating that on 20.05.2023^{heexecutedthe} warrant and on the said date, at about 9.40 a.m. the^defendant Nos.1 and 2 submitted a letter to him, requesting him^tomeasure the plaint schedule properties with the assistance^{ofSurveyorand} collect the plan from the Surveyor on scale to get correct measurement of the properties. Learned Advocate-Commissioner in his Report, dated 27.09.2023 further submitted that^asperthe Warrant issued by the Trial Court, there is no direction^totakethe

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assistance of Surveyor for measuring the plaint schedule^property. Learned Advocate-Commissioner further submitted that on the date of execution of warrant, the defendants did not cooperate with him for measuring the plaint schedule properties, consequently, he could not measure the same, thereby, he noticed only the physical features of the plaint schedule^properties and prepared rough sketch/plan and got filed the same^alongwith Report and photographs (42 in number) and other connected material documents. Learned Advocate-Commissioner also answered to the questions raised by the learned counsel^forthe plaintiff in his work memo.

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Aggrieved by the Report filed by the learned Advocate-Commissioner, besides filing Objections, defendant Nos.1 and 2 also filed I.A.No.25 of 2024 under Order^XXVIRule9 of CPC praying the Trial Court to re-entrust the Warrant^tothe same Advocate-Commissioner to revisit the plaint schedule property for measurement of said properties with the^assistanceof Surveyor, on the ground that the Commissioner’s Report^wasnot giving true picture in respect of plaint schedule properties^and measurement of properties are not done by the AdvocateCommissioner.

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Respondent/plaintiff filed counter contending that^the defendants filed Objections to the Report of the AdvocateCommissioner and unless and until that report is set-aside, 2 nd Advocate-Commissioner cannot be appointed. It is further contended that when once an Advocate-Commissioner inspected the plaint schedule properties on an application filed by the plaintiff, there is no question of re-entrustment of^warrantatthe instance of defendants. It is the plaintiff, who filed^thesuitand it is for the plaintiff to prove her case and the defendants^arenoway concerned with the appointment of Advocate-Commissioner^and get it measured to their convenience. Hence, it is prayed to dismiss the petition.

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The Trial Court, having perused the entire material^on record, vide Order, dated 29.07.2024, dismissed I.A.No.25 of 2024 in O.S.No.64 of 2023 on the ground that when the defendants filed objections basing on the report filed^byAdvocate- re-entrustment of warrant to the Commissioner, again Commissioner is not at all permissible, as defendants are at liberty, at the time of trial, to summon the Advocate-Commission er and cross-examine him basing on the report filed by^theAdvocate- Commissioner. Challenging the said impugned Order, the defendant Nos.1 and 2 preferred the present Revision^Petition.

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Learned counsel for the petitioners/defendant Nos.1 and 2 would contend that the Advocate-Commissioner in its Report, dated 27.09.2023 stated that the defendants did not cooperate with him in executing the warrant and in respect of the Report filed by the Advocate-Commissioner, the defendants filed objections. As such, re-entrustment of warrant to the AdvocateCommissioner to revisit the plaint schedule properties is necessary to measure the same with the assistance of Surveyor.

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Learned counsel for the respondent/plaintiff would contend that it is the plaintiff, who filed the suit, and it is for the plaintiff to prove her case and the defendants have nothing to do with the re-entrustment of warrant to the Advocate-Commissioner. Hence, it is prayed to dismiss the petition.

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Heard the learned counsel for the Revision Petitioners/defendant Nos.1 and 2 and learned counsel for the respondent/plaintiff. Perused the entire material on record coupled with the Report of the learned Advocate-Commissioner and other connected material.

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The point that arises for determination in this Civil Revision Petition is Whether the impugned Order, dated 29.07.2024 in I.A. No. 25 of 2024 in I.A.No. 419 of 2023 in

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O.S.No.64 of 2023 passed by the learned I Additional^Civil Judge (Senior Division), Nellore suffers any perversity, illegality, irregularity or impropriety of law requiring any interference^ofthis Court?

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A perusal of the material on record goes to show that \hq Trial Court vide Docket Order, dated 10.05.2023 allowed I.A.No.419 of 2023 in O.S.No.64 of 2023 filed by the plaintiff under Order XXVI Rule 9 of CPC by appointing an AdvocateCommissioner directing him to measure the plaint schedule properties and also to note down its physical features.^Learned Advocate-Commissioner was further directed to receive work memos and to answer the same as far as practicable. Accordingly, Warrant was issued to the learned AdvocateCommissioner.

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Pursuant to the same learned AdvocateCommissioner executed Warrant on 20.05.2023 and filed^Report on 27.09.2023. A perusal of the Report, dated 27.09.2023^filedby the learned Advocate-Commissioner goes to show that^hefixed the date on 20.05.2023 at 10.00 a.m. to execute the^warrantand informed the same to both side counsels by issuing notices. However, the report would also disclose that on the date of

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execution of warrant at about 9.40 a.m. the defendants^weresaid to have submitted a Letter to the learned Advocate-Commissioner, requesting him to measure the plaint schedule properties^withthe assistance of Surveyor and collect the plan from the Surveyor on scale to get correct measurement of the properties.^Apparently, there is no direction in the Warrant issued by the^{TrialCourttothe} learned Advocate-Commissioner to take the assistance of Surveyor. As the defendants were not cooperating with the learned Advocate-Commissioner for measuring the plaint schedule properties, he could not measure the same and thereby he only noticed the physical features of the plaint schedule properties and prepared rough sketch/plan and filed the same along with photographs in the Trial Court. Learned^Advocate- Commissioner answered to the work memo filed by the^learned counsel for the plaintiff. However, the defendants filed objections to the Report filed by the learned Advocate-Commissioner.

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It is the contention of learned counsel for the defendants that it is not possible for the Commissioner^tomeasure the said extent without the assistance of Surveyor,^{butthelearned} Advocate-Commissioner made a remark against the defendants that the defendants did not cooperate with him in executing^the

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Page 9 of 14 SRK, J CRP No. 130 of 2025 warrant, which is not at all correct. It is further^{contendedthatthe} not even required, as the cooperation of defendants is Commissioner is at .liberty to measure the property^inaccordance with the warrant issued by the Trial Court.

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Learned counsel for the defendants would further contend that if a portion of the commission work was^notfulfilled by the Commissioner for any reason, it is permissible to direct the Commissioner to complete the work with further very same material and the co-operation of the parties and their^advocates. He placed reliance on the proposition of law laid down^bytheHigh Court of Judicature, Andhra Pradesh at Hyderabad in^KushalRao V. Shyam Rao and anotherf The relevant paragraph Nos.5^and

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6 read thus;

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‘5. The order of the learned Subordinate Judge suffers from so many illegalities and infirmities in addition to exercise of the jurisdiction in excess of what is contemplated under Order XXVI Rule 10 of the Code of Civil Procedure^(for short, the ‘Code’). By virtue of sub-clause (sic. Sub-rule)^(2)of Order XXVI of Rule 10, when the Commissioner submits the report in writing and signed by him along with the^{evidencetaken} up by him, it shall be the evidence in the suit and^{shallformpari} of the record and the Court or a party, with the permission^ofthe Court, may examine the Commissioner touching any of the matters referred to him or mentioned in the report. If the Court,

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for any reason, is dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to^bemadeasit thinks fit, according to the said sub-clause (sic. Sub-rule). There is no provision under Order XXVI of the Code for appointing^more than one Commissioner or to reject the report of the Commissioner and the evidence without any justification. The^law in regard to the appointment of more than one Commissioner by virtue of Order XXVI Rule 10 of the Code is no longer res Integra and has been settled by precedents, including the precedents^of this Court. /\s a normal rule, there is no doubt that two separate commissions should not be issued to deal with one and the same subject and to treat the report of both the Commissioners as evidence in the case, (vide Samudrala Sitaramacharyulu vs. Samudrala Ranganayakamma^; K.S.Ramachar vs. K.S.Krishnachaf; KunhikuW Ali v. Muhammad Hazi^ and Chhotu Mauju vs. Gurbhajan Singh^). It is only when the report of the first Commissioner is unsatisfactory and the Court is dissatisfied with his proceedings, that a second Commissioner could be appointed under the provisions of Order XXVI Rule 10 sub-clause (sic. Sub-rule) (3). If a second Commissioner is appointed either by rejecting the report of the first Commissioner or without that, the legal effects is that the report^ofthe first Commissioner may be wipe out in law. But, in view of the implications of Order XXVI Rule 10 sub-clause (sic. Sub-rule) (2) of the Code, such a report and the evidence recorded by the Commissioner would be evidence in that case, which has to be taken into consideration while deciding the matter in Issue by the Court and, therefore, as a routine, if a second commissioner Is appointed. It has got serious consequences wrought (sic. Fraught) with danger to the ultimate justice. Thus such a procedure of appointing second commissioner or more than one

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^ AIR 1958 A.P.304. ^ AIR 1949 Madras 612

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'’air 1931 Madras 73. ® AIR 1972 P & H 265.

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commissioner for the same purpose is said to be improper^and iilegal, (See page 1880 of ‘Mulla on C.P.C.’, Volume^3ofthe Fourth Edition and also page 574 of A.I.R. Commentaries on C.P.C., Volume 4 of 9‘^ Edition).

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The reasons given by the learned Subordinate Judge to appoint second commissioner are not convincing. The learned Subordinate Judge opined that the Commissioner who was appointed already is a junior and that his report^can be improved by appointing a senior advocate of the Bar, but the same is inconsistent with the appointment of the first commissioner who has already done a part of the work,^whichis not found to be defective nor rejected. Secondly, if a portion of the commission work n/as not fulfilled by the commissioner^for any reason, it is possible to direct the very same^Commissioner to complete the work with further materials and the cooperation of the parties and their advocates. Even assuming that the report of the first commissioner is not complete, the Court^could still consider whether the evidence on record through the report of the Commissioner was adequate or inadequate to decide the controversies between the parties in regard to the^assessmentof mesne profits. Patently, the report of the Commissioner^covered the assessment of mesne profits for at least two years. Without examining these implications, the learned Subordinate Judge has landed in error in appointing the second commissioner,^whichthis Court disapproves as inconsistent with the law and^inexerciseof jurisdiction beyond the scope of law therein. Thus, the order cannot be sustained. ”

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A plain reading of the above decision goes to show that second Commissioner could be appointed under the provisions of Order XXVI Rule 10 sub-clause (sic. Sub-rule) (3) of

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CPC, only when the report of the first Commissioner is unsatisfactory and the Court is dissatisfied with its proceedings.

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In the case on hand, a perusal of the Report filed by the learned Advocate-Commissioner goes to show that^hecould not measure the plaint schedule properties, as the^{defendantshad} not cooperated with him for measuring the same and as such, the learned Advocate-Commissioner had only noticed the physical features of the plaint schedule properties and prepared rough sketch/plan. As per the Report of the learned AdvocateCommissioner, it is his contention that the defendants^madea letter on the date of execution of warrant requesting him to measure the plaint schedule properties with the assistance^ofthe Surveyor and collect the plan from the Surveyor on scale to get correct measurement of the properties.

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Indisputably, no such direction was issued by the Trial Court to the learned Advocate-Commissioner in the Warrant issued as per the Order, dated 10.05.2023 in I.A.No.419^of2023 in O.S.No.64 of 2023. As per the contention of learned counsel for the defendants, learned Advocate-Commissioner could not measure the plaint schedule properties, as directed by the Trial Court in its Warrant, dated 10.05.2023. Apparently,^{theTrialCourt}

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was not unsatisfied with the report of the learned AdvocateCommissioner. The only grievance of the petitioners is that the very object of appointment of Advocate-Commissioner^was to measure the plaint schedule properties, which was not^doneso. As such, the petitioners approached the Court seeking to re entrust the warrant to the same Advocate-Commissioner^torevisit the plaint schedule properties for measuring the same^withthe assistance of Surveyor.

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Admittedly, the Trial Court did not conduct any inquiry as to why the learned Advocate-Commissioner did not^executethe warrant as per the terms stipulated in the warrant^andwithout there being any adjudication in that aspect, the Trial Court dismissed I.A.No.25 of 2024, which was filed for re-entrustment^of warrant to the same Advocate-Commissioner. Therefore, having regard to the facts and circumstances of the case,^andhaving regard to the finding arrived by this Court in the^{abovedecision,} this Court deems it appropriate to set-aside the impugned^Order and remand the matter to the trial Court, with a direction, to conduct inquiry as to why the learned Advocate-Commissioner^did not execute the warrant as per the terms stipulated^{inthewarrant.}

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Accordingly, the Civil Revision Petition is disposed of, setting-aside the impugned Order, dated 29.07.2024^passed in I.A.No.25 of 2024 in l.A.No.419 of 2023 in O.S.No.64^of2024by the learned I Additional Civil Judge (Senior Division), Nellore,^with a direction, to conduct inquiry as to why the learned AdvocateCommissioner did not execute the warrant as per the terms warrant by affording opportunity to all the stipulated in the to be conducted, the Trial stakeholders. In the light of the inquiry Court has to decide whether the warrant has to be re-entrusted to not. The Trial Court is the learned Advocate-Commissioner or directed to complete the inquiry as expeditiously as^possiblenot later than four (04) weeks from the date of communication of a copy of this Order.

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There shall be no order as to costs, As a sequel, miscellaneous applications pending, if any

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shall stand closed.

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To,

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