Judgment:
ORDER
Iyyapu Panduranga Rao, J.
1. This revision is directed against the order dated 6-12-1988 of the learned III Additional District Judge, Chittoor at Tirupati appointing a Commissioner in I.A. No. 642 of 1988 in A.S. No. 47 of 1987 on his file. The facts which are relevant for appreciation of the point in question are the following :
2. The revision petitioner is the respondent in the appeal, respondent in I.A. No. 642 of 1988 and plaintiff in the suit while the respondents in the revision petition are the appellants in the appeal, petitioners in I.A. No. 642 of 1988 and the defendants in the suit. The parties will; be referred to as arrayed in the suit. The plaintiff filed the suit for a declaration and injunction alleging that the second defendant who is the wife of the first defendant without any manner of right or title to the suit property are trying to occupy the same about four days prior to the institution of the suit. The defendants resisted the suit alleging that the second defendant purchased the property more particularly mentioned in her written statement, under Ex. B-1 sale deed and eversince have been in possession and enjoyment of the same. In the suit an application in I.A. No. 878 of 1980 was filed by the defendants for the appointment of a Commissioner to localise the suit land etc., reliefs. The said application was allowed. A Commissioner was appointed and he filed his report along with a sketch etc. Having regard to the oral and documentary evidence the trial court decreed the suit as per the judgment dt. 27-2-1987. Aggrieved by the said judgment and decree the defendants preferred A.S. No. 47 of 1987 on the file of the learned III Additional District Judge, Chittoor at Tirupati and the said appeal is pending. After the institution of the appeal, the defendants filed I.A. No. 642 of 1982 for the appointment of a Commissioner and as per the orders dated 6-12-1988, the orders under revision, the learned III Additional Judge, Chittoor at Tirupathi was pleased to appoint a Commissioner and aggrieved by the said orders the present revision petition was filed.
3. In the first instance the learned counsel appearing for the defendants submits that in a revision petition instituted under Section 115 of the Code of Civil Procedure the orders passed appointing a Commissioner cannot be reviewed and to substantiate the said contention reliance is placed on the decisions reported in Madhavacliaryulu v. Venkata Rao, 1984 (1) ALT page 27; Mir Mazhar Ali Saheb and Ors. v. Mir Gulam Murtuza Ali Saheb, 1985 (2) ALT page 7; and In the matter of B.H.P. & V. Ltd., Visakhapatnam, AIR 1985 A.P. page 207.
4. In Madhavacharyulu v. Venkata Rao (1 supra) it is observed that error of jurisdiction or manifest error of procedure affecting ultimate decision resulting in grave injustice can alone be set right in a proceeding in revision and irregular exercise or non-exercise of it or illegal assumption of it is no ground to invoke Section 115 of the Code of Civil Procedure.
5. In Mir Mazhar Ali Saheb and Ors. v. Mir Gulam Murtuza Ali Saheb (2 supra) it is observed that in view of the amendment to Section 115 of the Code of Civil Procedure it is not enough that the interim order complained against is jurisdictionally or legally wrong or procedurally wrong. But in addition the said order should occasion failure of justice enabling invoking of Section 115 of the Code of Civil Procedure.
6. To the same effect is the decision reported in The matter of B.H.P. & V. Ltd , Visakhapatnam.
7. Section 115 of the Code of Civil Procedure reads as follows :
115. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation :-In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.'
8. The proviso appended to Section 115 of the Code of Civil Procedure categorically shows that the High Court shall not invoke Section 115 of the Code of Civil Procedure, to vary or reverse any order made in the course of a suit or other proceeding except where the order if it had been made in favour of a party applying for revision would have finally disposed of the suit or other proceeding or the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
9. It is submitted on behalf of the plaintiff that originally in the trial Court a Commissioner was appointed in I.A. No. 878 of 1980. Relying upon the report of the Commissioner and other material the suit was decreed in favour of the plaintiff. Admittedly no second Commissioner can be appointed for the same purpose unless and until the report of the Commissioner is expunged. By virtue of the impugned orders in I.A. No. 642 of 1988 the first Commissioner's report is sought to be expunged which occasions not only in failure of justice but will also result in irreparable injury to the plaintiff. I find substance in the said submission and by virtue of the appointment of the second Commissioner it not only results in failure of justice but will cause irreparable injury to the plaintiff and consequently even according to the observations made in the above three decisions this is a fit case where Section 115 of the Code of Civil Procedure can be invoked.
10. Coming to the merits it is to be seen that I.A. No. 878 of 1980 was filed by the defendants in the trial court, a Commissioner was appointed, his report was marked as Ex. C-1 and the rough sketch filed by him is marked as Ex. C-3. The plan prepared by the taluk surveyor is marked as Ex. C-2, The defendants have not chosen to file any objections Ex. to C-1 and C-3. In the event of the defendants finding that Exs. C-1 to C-3 or any one of the said documents is against the interests of the defendants, there is no reason for the defendants in not filing objections thereto.
11. It is also to be seen that while A.S. No. 47 of 1987 was filed on 23-4-1987 I.A. No. 642 of 1988 was filed under date 8-6-1988 i.e., about 13 1/2 months after the filing of the appeal. It is also to be seen that the impugned order shows that the Commissioner under Ex. C-1 has not localised S. No. 414/1 and directed the second Commissioner to localise S. No. 414/1 and its sub-divisions. One of the grounds for the appointment of the second Commissioner by the learned III Additional District Judge is that Ex. C-3 is a rough sketch and no plan drawn to scale was prepared by the first Commissioner. It is to be seen that Ex. C-3 is only a rough sketch but Ex. C-2 the plan prepared by the Taluk Surveyor is drawn to scale and no objections are filed to Ex. C-2 as already observed, regarding measurements etc. It is to be noted that the material on record clearly shows that S. No. 414 was divided into 1-A to 1-H by the Taluk office as per the proceedings dated 13-3-1981 and consequently S. No. 413 was not available as on today or right from 13-3-1981 and what is available on and from 13-3-1981 is only the sub-divisions 1-A to 1-H in Survey No. 414. According to the plaintiff the land purchased by her is one covered by S. No. 414/1-G and according to the defendants also their property is covered by the same subdivision and thus the two reasons given by the learned III Additional District Judge for appointment of second Commissioner are not at all valid. Under these circumstances I am of the clear opinion that in the event of a Commissioner being appointed as directed under the impugned order, the plaintiff stands to suffer irreparable injury and such a course will also occasion the failure of justice.
12. In the result the revision petition is allowed. No costs.