Seepally Thirupathi and ors. Vs. Repelli Mallikarjun and anr. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......orderp.s. narayana, j.1. this court ordered notice before admission.2. sri d. seshadri naidu, learned counsel entered appearance representing respondents.3. sri t. jagadish, the learned counsel representing sri v. mehar sreenivasarao, the learned counsel for revision petitioners-plaintiffs made the following submissions:the learned counsel for the revision petitioners had placed the report of the commissioner before this court and would contend that the point from which, the measurements to be taken, in fact, had not been properly fixed and the procedure to be followed under the andhra pradesh survey and boundaries act also had not been followed. the learned counsel in all fairness would submit that it is no doubt a lapse on the part of the petitioners-plaintiffs in not raising objections.....

Judgment:
ORDER

P.S. Narayana, J.

1. This Court ordered Notice Before Admission.

2. Sri D. Seshadri Naidu, learned Counsel entered appearance representing respondents.

3. Sri T. Jagadish, the learned Counsel representing Sri V. Mehar Sreenivasarao, the learned Counsel for revision petitioners-plaintiffs made the following submissions:

The learned Counsel for the revision petitioners had placed the report of the Commissioner before this Court and would contend that the point from which, the measurements to be taken, in fact, had not been properly fixed and the procedure to be followed under the Andhra Pradesh Survey and Boundaries Act also had not been followed. The learned Counsel in all fairness would submit that it is no doubt a lapse on the part of the petitioners-plaintiffs in not raising objections to the report of the Commissioner, but, however, this application filed under peculiar circumstances may have to be considered on a different footing, for the reason that what is being prayed for is the scientific investigation for the purpose of actual localization whether the plaint schedule property falls within S.No. 224 or 225. The learned Counsel also explained the scope and ambit of 'expert investigation' and had placed strong reliance on Section 75(e) read with Order 26 Rule 10(A) of the Code of Civil Procedure. (Hereinafter for short referred to as 'Code'). The learned Counsel would maintain that in view of the peculiar facts and circumstances, inasmuch as the relief prayed for is for the purpose of localization of the property by a higher authority by way of scientific investigation, it could have been just and proper on the part of the learned Judge to appoint a Commissioner as prayed for instead of dismissing the application. The learned Counsel also placed reliance on certain decisions to substantiate his contentions.

4. Sri D. Seshadri Naidu, learned Counsel representing the respondents had taken this Court through the affidavit filed in support of the application before the learned II Additional Junior Civil Judge, Warangal and would contend that none of these contentions had been at least whispered in the affidavit filed in support of the application, as are being raised before this Court. The learned Counsel also would maintain that what is being prayed for, is the appointment of second Commissioner without recording reasons why the first Commissioner's report cannot be relied upon or by setting aside the report of the first Commissioner and hence, such appointment cannot be made. The learned Counsel also relied upon certain decisions in this regard. While further elaborating his submissions, the learned Counsel also would maintain that in fact, even objections had not been raised to the report of the Commissioner and such parties who had not raised even objections, cannot be permitted to move an application under the guise that the present appointment of Commissioner is of 'expert investigation'. The learned Counsel also would maintain that this is a suit for injunction simplicitor and in such a suit, normally, Commissioner cannot be appointed for the purpose for which, it is being prayed for as in the present case. The learned Counsel also placed reliance on certain decisions in this regard. While concluding, the learned Counsel would maintain that this is a civil revision petition filed under Article 277 of the Constitution of India and the same being supervisory jurisdiction, the impugned order cannot be disturbed while exercising powers under the said provision.

5. Heard the learned Counsel on record and perused the impugned order.

6. The revision petitioners filed the present civil revision petition under Article 227 of the Constitution of India aggrieved by the order made in I.A.No. 218 of 2005 in O.S. No. 297 of 2001 on the file of the II Additional Junior Civil Judge, Warangal, whereunder, the application filed by the petitioners under Order 26 Rule 9 read with Section 151 of the Code, for appointment of Commissioner to note down the physical features and fix the boundaries of Survey Nos. 224 and 225 of the suit schedule property with the help of Assistant Director of Survey and Land Records, had been dismissed. It is not in serious controversy that yet another Commissioner was appointed in I.A.No. 748 of 2001 in O.S.No. 297 of 2001. The learned Commissioner also filed a report with the assistance of M.C. Inspector for the purpose of locating the property and for the purpose of conducting survey. On the strength of the work memos filed by both the parties, the warrant was executed and a report was filed. It is also not in serious controversy that both the parties had not raised any objections. However, this application had been thought of at the stage of cross-examination of PW1, may be that, having been felt that the report of the Commissioner may come in their way, the petitioners had chosen to move this application for the purpose of further clarification or being dissatisfied with the way in which the prior location of the property had been conducted by the Commissioner with the help of the M.C. Inspector. Be that as it may, the fact remains that an application for appointment of a Commissioner was in fact made and a Commissioner was appointed and a report also was filed and no objections had been filed to the said report. The relief, which is being prayed for is the selfsame relief, with modification that, it should be located with the assistance of a higher authority, i.e., the Assistant Director of Survey and Land Records, Warangal. It is needless to say that the Court without setting aside the report of the first Commissioner, cannot appoint a second Commissioner. Reliance was placed on K.C. Balasubramanyam Pillai v. Bodireddygari Ramakrishna Reddy : 2004(3)ALD531 The same view was expressed in Satyanarayana v. T. Jalaiah : AIR1972AP265 wherein the decisions in K.S. Ramachar v. K.S. Krishnachar AIR 1931 Mad. 73 and Kunhikutti Ali v. Muhammad Haji AIR 1949 Mad. 612 were, in fact, referred to and followed. In fact, the Division Bench of Kerala High Court in Swami Premamanda Bharathi v. Swami Yogananda Bharathi and Anr. : AIR1985Ker83 while dealing with the appointment of a second Commissioner, before superseding the first Commissioner's report and proceedings, held that this is not a mere irregularity, but it is illegal and jurisdictional error and decision based on second Commissioner's report would not operate as res judicata. The learned Counsel also relied on K. Ramalingam v. M.V. Ramanathan AIR 1978 Karn. 65, R. Vijayudu v. N. Ramachandra Reddy : 2004(5)ALD486 and Kishore Kumar and Anr. v. Rakeshkumar Jayaprakash Agrawal and Ors. : AIR1992Guj95

7. However, the learned Judge of Kerala High Court in Sivaraman v. V.C. Narayanan : AIR1987Ker156 while dealing with the aspect of further enquiry to be made contemplated by Order 26 Rule 10(3) held that it presupposes that an enquiry by the same Commissioner also is possible if the Court feels so and if the report of the first Commissioner is found to be deficient on any point, the proper course would be to direct same Commissioner to remedy the defects. The view expressed in Swami Premamanda Bharathi v. Swami Yogananda Bharathi and Anr. (supra) had been referred to and followed. In this context, it is appropriate to have a look at Order 26 Rule 10(A) of the Code of Civil Procedure, which reads as hereunder:

Commission for scientific investigation : Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report hereon to the Court.

8. Order 26 Rule 10 of the Code reads as hereunder:

Procedure of Commissioner :(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit :The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record, but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person :Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

9. Section 75(e) of the Code reads as hereunder:

Power of Court to issue commissions : Subject to such conditions and limitations as may be prescribed, the Court may issue a commission--

(a) ...

(b) ...

(c) ...

(d) ...

(e) to hold a scientific, technical, or expert investigation.

10. It is pertinent to note that merely because scientific enquiry had been referred to, it cannot be said that under the guise of those provisions, when already a report of Commissioner is available on record, the learned Judge without recording any reasons, expressing either the deficiency or otherwise relating to the said report, cannot appoint yet another Commissioner. Hence, in this view of the matter, the learned Judge had not committed any illegality whatsoever in dismissing the application.

11. The learned Counsel representing the respondents also placed reliance on Arredla Ram Reddy and Ors. v. Arredla Alivelamma It is made clear that no hard and fast rule can be laid down that in a suit for injunction under no circumstances, a Commissioner can be appointed. Though this question was raised and argued this may not be very relevant for the present purpose and hence, this Court is not inclined to express any further opinion in relation thereto.

12. It is pertinent to note that the objection raised by the respondents that in a suit for injunction, a Commissioner cannot be appointed, appears to be a peculiar objection, especially for the reason that the prior application, in fact, was moved by the respondents and got a Commissioner appointed and a report also was filed in pursuance thereof. Whatever the reasons may be, inasmuch as the said question being not the principal question or may not be germane for deciding the questions in controversy in the present civil revision petition, this Court is not inclined to express any further opinion relating to the said aspect.

13. In the peculiar facts and circumstances, this Court is of the considered opinion that in the event of the petitioners being in want of certain clarifications, the proper course would be to move the Court to re-entrust the warrant to the selfsame Commissioner for the purpose of obtaining such clarifications if any, in the peculiar facts and circumstances, especially in the light of the fact that this localization of the survey numbers would assume crucial importance in a suit of this nature.

14. In the light of the same, liberty is given to the petitioners to move appropriate application praying for appropriate reliefs if they are so advised and if the learned Judge is satisfied that further clarifications are essential, the learned Judge may consider and re-entrust the warrant to the selfsame Commissioner with further suitable directions in this regard. Except making the aforesaid observation, nothing else can be done at this stage.

15. Accordingly, with the above observations, the civil revision petition is disposed of. No order as to costs.