Mannam Venkateswarlu vs Mannam Venkateswarlu Died
2024 Latest Caselaw 7599 AP

Andhra Pradesh High Court - Amravati

Mannam Venkateswarlu vs Mannam Venkateswarlu Died on 23 August, 2024

          * THE HON'BLE SRI JUSTICE NYAPATHY VIJAY

            CIVIL REVISION PETITION No.3548 of 2014


% 23.08.2024
# Mannam Venkateswarlu & Another                  ....    Petitioners

                                Versus

$ Mannam Venkateswarlu (died) represented
by Mannam Eswaramma & Others                      ..... Respondents

! Counsel for the Petitioners    : Sri Madhava Rao Nalluri

! Counsel for the Respondents : Sri Mekala Rama Murthy,
                                learned counsel representing
                                Sri Kaushik Kumbhajadala

< Gist:

> Head Note:

? Cases referred:

1) 2022 (4) ALT 729
2) AIR 2004 Madras 419
3) AIR 1966 AP 384
                                  2




         THE HON'BLE SRI JUSTICE NYAPATHY VIJAY

           CIVIL REVISION PETITION No.3548 of 2014


# Mannam Venkateswarlu & Another                 ....    Petitioners

Versus

$ Mannam Venkateswarlu (died) represented
by Mannam Eswaramma & Others                     ....   Respondents

DATE OF ORDER PRONOUNCED: 23.08.2024
SUBMITTED FOR APPROVAL:


         THE HON'BLE SRI JUSTICE NYAPATHY VIJAY


1. Whether Reporters of Local Newspapers may
   be allowed to see the Order?                       Yes/No

2. Whether the copies of Order may be marked
   to Law Reporters/Journals?                         Yes/No

3. Whether Your Lordships wish to see the fair
   copy of the Order?                                 Yes/No



                                             __________________
                                             NYAPATHY VIJAY, J
                                     3




         THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
                         C.R.P.No.3548 of 2014
ORDER:

1. The present Civil Revision Petition is filed against the Docket order passed in I.A.No.761 of 2013 in A.S.No.100 of 2013 dated 22.08.2014 on the file of the Court of the Family Judge, Ongole, Prakasam District.

2. The Relevant facts so far:-

3. The petitioners herein are the defendants. The respondents filed suit to declare the registered Settlement Deed vide document No.225/2006, dated 17.02.2006 executed by the Defendant No.1 in favour of Defendant No.2, as illegal and void. Further relief of consequential permanent injunction was sought. The trial Court after an elaborate trial passed a detailed Judgment on 08.04.2013 dismissing the suit. The unsuccessful plaintiffs/petitioners herein filed A.S.No.100/2013 before the Family Court Judge, Ongole.

4. While so, an I.A was filed seeking appointment of Advocate Commissioner to inspect the suit schedule property and to note down the physical features of the property. The petitioners filed a detailed counter opposing the said relief.

5. The trial Court without assigning any reasons allowed the I.A and appointed an Advocate Commissioner to inspect the suit schedule property and submit a report. Hence, the present C.R.P is filed.

6. Heard Sri Madhava Rao Nalluri, learned counsel for the petitioners and Sri Mekala Rama Murthy, learned counsel representing Sri Kaushik Kumbhajadala, learned counsel for the respondents.

7. Arguments: The counsel for the petitioners contended that considering the nature of suit, there is no reason for appointment of Advocate Commissioner to note down the physical features. It was further contended that the appellate Court did not give any exceptional reasons for appointment of an Advocate Commissioner and had acted like a fact finding trial Court without understanding the scope of appeal. The counsel for the respondents argued that there is no bar for the appellate Court to appoint an Advocate Commissioner and in the peculiar facts of this case, an Advocate Commissioner could be appointed. It was also pointed out that some of the parties hereto had expired and no application to bring the legal representatives on record was filed and as such the C.R.P had abated.

8. Reasoning of the Court: Coming to the first point regarding the reason for appointment of Advocate Commissioner. The suit is for cancellation of a document executed by the Defendant No.1 in favour of Defendant No.2. It is not the case of the respondents that there is a dispute with regard to identity of the property. Though, a detailed statement of facts are mentioned in the application filed in support of the application, but relevancy of the Advocate Commissioner report to decide the appeal is found wanting.

9. Coming to the second point regarding the scope for appointment of Advocate Commissioner in an Appeal. It is to be noted that appointment of Advocate Commissioner is a fact finding aspect and such applications ought to be filed before the trial Court, so as to enable the respective parties to lead evidence either in support of the Advocate Commissioner's report or in opposition thereof. In an appeal, the suit would be re-heard on the basis of the record available. In exceptional circumstances, the appellate Court can take additional evidence under Order 41 Rule 27 CPC. The appointment of Advocate Commissioner cannot be done in appeal unless conditions specified in Order 41 Rule 27 CPC are satisfied. A similar view was taken by this court in Kommineni Rama kotaiah Vs Jetti Siva Parvathi1. In this case, the conditions specified in Order 41 Rule 27 CPC are not mentioned in the application by the Respondents. For appointment of an Advocate Commissioner by the appellate Court, there should be compelling reasons, without which, the appellate Court would not be in a position to render judgment. In this case, nothing of that sought has been pointed out.

10. The Judgment of Hon'ble High Court of Madras between Vaithinattar and Anr Vs Sakku Bai Ammal2 was cited by respondent counsel in support of their plea that Advocate Commissioner could be appointed even in appeals. In that case, the suit was for declaration of title and permanent injunction. The Hon'ble High Court in second appeal after going through the entire evidence held that appointment of Advocate Commissioner

2022(4) ALT 729

AIR 2004 Madras 419

was absolutely necessary in the facts of the said case and remanded the appeal to the trial Court for the same. In this case, the appellate Court itself converted into a trial Court and appointed an Advocate Commissioner. The Judgment is not in support of the plea of the Respondents, but is contrary.

11. Coming to the third point that as the legal representatives of the deceased respondents, who died pending this CRP, were not brought on record, the CRP stands abated. In the facts of this case, the surviving respondents could be treated as legal representatives for the purpose of the disposal of the CRP as all the respondents are closely related. The Respondent Nos.1 and 2 are the parents of Respondents No.3 to 5 and commonly litigating for the cancellation of the suit document under a common right. As common interest is involved, the surviving respondents are treated as legal representatives.

12. Even otherwise, the death of a party would not in any way affect the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, as this Court is only concerned with the correctness of the order passed by the Courts below. The jurisdictional errors committed by the Civil Courts cannot be validated on technicalities after it was brought to the notice of the High Court, as that would not be in consonance with the superintendence power conferred under the Constitution.

13. Ages ago, this issue was considered by a Division Bench of this Court while considering a similar objection vis-a-vis an order under Section 115 CPC in Narpatsingh Dadha vs Gokuldas And Ors.3 "This pertains to a revision which we have disposed of, and it is stated that the date of its hearing and disposal, the petitioner died. The question of the death of the petitioner does not in any way make our judgment invalid for the reason that it is a revision under Section 115, CPC in which the High Court can even suo motu call for the records and dispose of it after examining them and satisfying itself that the lower Court's order does not suffer from any infirmity specified in Section 115. We do not think that the death of a party affects the High Court's power of revision and hence the validity of the judgment cannot be questioned."

14. Therefore, for the aforesaid reasons, the appointment of Advocate Commissioner cannot be sustained. The Impugned order of the lower appellate Court is set aside and the Civil Revision Petition is allowed.

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

__________________ NYAPATHY VIJAY, J Date: 23.08.2024 Note: L.R. Copy be marked (B/o) IS

AIR 1966 AP 384

THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

Date: 23.08.2024

Note: L.R. Copy be marked (B/o) IS