M Suguna Devi vs T Raikab Chand Died
2023 Latest Caselaw 5441 AP

Citation : 2023 Latest Caselaw 5441 AP
Judgement Date : 10 November, 2023

Andhra Pradesh High Court - Amravati

M Suguna Devi vs T Raikab Chand Died on 10 November, 2023

Bench: K Manmadha Rao

        THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                      C.M.A.No.1227 OF 2018

JUDGMENT:

The Appellant herein is the petitioner/ appellant before the

III Additional District Judge, Nellore (in short 'the court below') filed

the present Civil Miscellaneous Appeal before this Court. Aggrieved

by the order dated 08.10.2018 in I.A.No. 269 of 2017 in I.A.No. 167

of 2017 in A.S.No.83 of 2016, which is filed under order IX, rule 9

read with Section 151 of C.P.C to restore the I.A.No.167 of 2017,

which was dismissed on 21.03.2017 permitting the appellant to

submit her side hearing for disposal of appeal. The court below

dismissed the application holding that the application is filed only

to drag on the matter, though sufficient opportunity has given to

submit her arguments, but she did not turn up so far. Assailing

the same, the present C.M.A came to be filed.

2. Heard Mr. C. Subodh, learned counsel for the appellant

and Mr. T. Janardhan Rao, learned counsel for the respondents.

3. During hearing learned counsel for the appellant would

contend that the appeal was posted on 21.03.2017 for enquiry on

the application imposing cost and on that day as the senior

counsel was not present and the appellant paid costs and

requested to post the matter on the next day, but the court below

without considering her request and without giving opportunity to

hear the matter, dismissed the application and simply holding that

the application for restoration is not maintainable as the grounds

urged by the appellant is disbelieved by the court below is highly

untenable. Therefore the C.M.A is liable to be allowed.

4. Learned counsel for the respondents would contend that

the court below has rightly considered the facts and circumstances

and dismissed the applications. It is further contended that

Advocate Commissioner has been appointed and he filed report

also. Therefore the said application is not maintainable. In view of

the C.M.A is liable to be dismissed.

5. Perused the record.

6. I.A.No. 167 of 2017 has been filed for appointment of an

Advocate/ Commissioner for the purpose to inspect the properties

of both sides and to localize their properties by virtue of their

respective documents with the assistance of qualified surveyor and

to decide whether the alleged IJKL portion is in the vicinity of

respondents/ plaintiffs or the petitioner/ defendant therein. The

court below upon perusal of the both affidavit and counter,

wherein it was found that there is no just and sufficient cause to

file the application for appointment of advocate commission, which

is filed only to dodge the proceedings. Even though, the appellant

did not turn up to submit her arguments. Therefore the court

below dismissed the I.A.No.167 of 2017 on 21.03.2017.

7. It is the contention of the respondents that initially an

Advocate commissioner was appointed and he filed a report in the

suit. Therefore there is no need or necessity to appoint an advocate

commissioner. Further it is the contention of the petitioner that on

21.03.2017 her senior counsel was out of station and paid costs to

other side and requested time to post the matter next day, but the

court below simply dismissed the application without giving proper

opportunity.

8. Learned counsel for the respondents placed reliance on

the decision of this Court in "Jala Swamydas and Others v.

Jadani Sumayun Raju"1, wherein it was held as follows:

"3. The matter is coming up for admission. It is not in serious controversy that for a particular purpose, a commissioner was appointed and for the self-same purpose, another application for appointment of second commissioner had been filed. The ground raised is that for certain reasons the revision petitioners/defendants were not present at the time of inspection and hence, prejudice has been caused to them. It is needless to say that the relief prayed for in the application is a misconceived one. May be, in the facts and circumstances of the case, in the light of the memo or the objections raised by the revision petitioners, they could have prayed for re-entrustment of warrant to the self same commissioner by affording proper

MANU/AP/0555/2005

opportunity to be present at the time of inspection. If they are, so, aggrieved of the nature of the report, which had been filed, it is needless to say that the petitioners are entitled to raise the appropriate objections also in this regard. The consistent view always has been that without setting aside the report of the first commissioner, a second commissioner for the self same purpose cannot be appointed."

9. However, advocate/ commissioner appointed in the suit

before the court below and there was a report. Therefore there is no

need or necessity to appoint an Advocate/ commissioner once

again. It is contention of the appellants that the court below has

not given ample opportunity to the appellant to argue the matter,

as noted by the court below. Since the impugned application is

filed to restore the I.A.No.167 of 2017, as the application for

appointment of advocate of commissioner was dismissed for

default. The court below has not passed the order on merits.

Therefore, this Court finds that an opportunity has to be given to

the parties to decide the issue on merits for fair disposal.

10. Under the aforementioned circumstances, it is just and