Shabeer Ahmed Vs. Shamshad Begum - Court Judgment

Excerpt:
- - 2005(6)alt137 the revision is not maintainable and as the revision petitioner, who was granted reasonable time for filing counter failed to utilise that opportunity, he cannot complain that adequate time for filing counter was given to him and contended that the prayer sought by the respondent does not amount to seeking appointment of commissioner for collection of evidence as held in jayalakshmi constructions and anr.orderc.y. somayajulu, j.1. respondent filed a suit for mandatory and perpetual injunction against the revision petitioner and filed a petition under order xxvi rule 9 read with section 151 of the code of civil procedure to appoint an advocate commissioner to note down the physical features and to take measurements of the plots with the assistance of municipal surveyor, kurnool municipal corporation, which was registered as i.a. no. 988 of 2006 on 8-11 -2006. the trial court directed issuance of notice and posted the interlocutory application for notice and counter on 10-11 -2006. on 10-11 -2006 counsel for the revision petitioner sought time for filing counter during call work. the trial court without granting time to the revision petitioner to file counter allowed the petition and appointed an advocate commissioner on the ground that no prejudice would be caused to the revision petitioner by appointing an advocate commissioner as sought in the petition. aggrieved by the said order, the respondent/defendant in the trial court preferred this revision.2. the contention of the learned counsel for the revision petitioner is that since the revision petitioner was not given reasonable time for filing counter and as the trial court appointed the commissioner on an assumption that no prejudice would be caused to the revision petitioner thereby, when in fact it does, as the purpose of seeking his appointment is for collection of evidence, which is not permissible, the order appointing the commissioner is liable to be set aside.3. the contention of the learned counsel for the respondent is that in view of the ratio in todendula venkata krishnaiah v. uppu gangaiath 2004 (1) a.l.t. 335 and gollu venkateswara rao & co. and ors. v. bhoogavalli rajeswara rao and anr. : 2005(6)alt137 the revision is not maintainable and as the revision petitioner, who was granted reasonable time for filing counter failed to utilise that opportunity, he cannot complain that adequate time for filing counter was given to him and contended that the prayer sought by the respondent does not amount to seeking appointment of commissioner for collection of evidence as held in jayalakshmi constructions and anr. v. nawab behboob ali khan and ors. : 2006(2)ald363 and so the revision petitioner is not entitled to any relief.4. the ratio in todendula venkata krishnaiah case (1 supra) and gollu venkateswara rao & co. case (2 supra) is that jurisdiction of this court under article 227 cannot be invoked to correct errors of fact or law and can be invoked only when there is an error manifest and apparent on the face of the proceedings and when the remedy of revision under section 115 cpc is expressly barred or when no alternative remedy is available.5. as stated earlier, i.a. no. 988 of 2006, out of which this revision arises, was registered on 8-11-2006 and was posted to 10-11-2006 for notice and counter. as per rule 58 of the civil rules of practice and circular orders, unless the court otherwise orders, three days notice of an interlocutory application shall have to be given to the other side or their advocate before the day appointed for the hearing of the application. the court is given the discretion to reduce the period of three days notice, obviously to enable its passing orders in matters of urgent nature, which do not brook any delay. i.a. no. 988 of 2006 was posted to 10-11-2006 for 'notice and counter' but not for 'hearing'. since it is not the case of the respondent that revision petitioners are going to change physical features obtaining on the suit property and is changing the measurements of the plots, there, prima facie, is no urgency involved for the court to pass orders immediately.6. i am of the considered opinion that the trial court was in error in assuming that the revision petitioner would not be prejudiced by appointment of commissioner. what are the contentions that would be raised by the revision petitioner opposing the appointment of a commissioner cannot be foreseen by the court. after the revision petitioner filed his counter the court can take decision, on the objection raised and then decide the case on merits. that apart passing orders in an application, though it is not posted for 'hearing' and is posted only for notice and counter, cannot but be said to be irregular. if the trial court felt that the revision petitioner sought time, only to drag on the proceedings, to file counter, it would have granted time by imposing terms but should not have disposed of the case more so when it is not even posted for hearing.7. not granting adequate time for the revision petitioner to file counter, and passing the order in a hurry, when there is no urgency, is an error apparent on the face of the record. for that reason and as there is clear violation of rule 58 of the civil rules of practice, the order under revision is liable to be and hence is set aside and has to be remitted for disposal on merits.8. as i am remitting the case, it is not desirable to give an opinion on the question whether a commissioner can be appointed in these facts and circumstances or not. so, i do not wish to express my opinion on the contentions raised by the learned counsel for the petitioner that the appointment of commissioner is improper.9. in view thereof, the order under revision is set aside and the case is remitted to the trial court for fresh disposal on merits, granting time to the revision petitioner to file his counter affidavit in i.a. no. 988 of 2006 on or before 18-6-2007. the trial court shall dispose of the petition on merits uninfluenced by the observations made in this order. no costs.

Judgment:
ORDER

C.Y. Somayajulu, J.

1. Respondent filed a suit for mandatory and perpetual injunction against the revision petitioner and filed a petition under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure to appoint an advocate commissioner to note down the physical features and to take measurements of the plots with the assistance of Municipal Surveyor, Kurnool Municipal Corporation, which was registered as I.A. No. 988 of 2006 on 8-11 -2006. The trial Court directed issuance of notice and posted the interlocutory application for notice and counter on 10-11 -2006. On 10-11 -2006 counsel for the revision petitioner sought time for filing counter during call work. The trial Court without granting time to the revision petitioner to file counter allowed the petition and appointed an advocate commissioner on the ground that no prejudice would be caused to the revision petitioner by appointing an advocate commissioner as sought in the petition. Aggrieved by the said order, the respondent/defendant in the trial Court preferred this revision.

2. The contention of the learned Counsel for the revision petitioner is that since the revision petitioner was not given reasonable time for filing counter and as the trial Court appointed the commissioner on an assumption that no prejudice would be caused to the revision petitioner thereby, when in fact it does, as the purpose of seeking his appointment is for collection of evidence, which is not permissible, the order appointing the commissioner is liable to be set aside.

3. The contention of the learned Counsel for the respondent is that in view of the ratio in Todendula Venkata Krishnaiah v. Uppu Gangaiath 2004 (1) A.L.T. 335 and Gollu Venkateswara Rao & Co. and Ors. v. Bhoogavalli Rajeswara Rao and Anr. : 2005(6)ALT137 the revision is not maintainable and as the revision petitioner, who was granted reasonable time for filing counter failed to utilise that opportunity, he cannot complain that adequate time for filing counter was given to him and contended that the prayer sought by the respondent does not amount to seeking appointment of Commissioner for collection of evidence as held in Jayalakshmi Constructions and Anr. v. Nawab Behboob Ali Khan and Ors. : 2006(2)ALD363 and so the revision petitioner is not entitled to any relief.

4. The ratio in Todendula Venkata Krishnaiah case (1 supra) and Gollu Venkateswara Rao & Co. case (2 supra) is that jurisdiction of this Court under Article 227 cannot be invoked to correct errors of fact or law and can be invoked only when there is an error manifest and apparent on the face of the proceedings and when the remedy of revision under Section 115 CPC is expressly barred or when no alternative remedy is available.

5. As stated earlier, I.A. No. 988 of 2006, out of which this revision arises, was registered on 8-11-2006 and was posted to 10-11-2006 for notice and counter. As per Rule 58 of the Civil Rules of Practice and Circular orders, unless the Court otherwise orders, three days notice of an interlocutory application shall have to be given to the other side or their advocate before the day appointed for the hearing of the application. The Court is given the discretion to reduce the period of three days notice, obviously to enable its passing orders in matters of urgent nature, which do not brook any delay. I.A. No. 988 of 2006 was posted to 10-11-2006 for 'Notice and counter' but not for 'Hearing'. Since it is not the case of the respondent that revision petitioners are going to change physical features obtaining on the suit property and is changing the measurements of the plots, there, prima facie, is no urgency involved for the Court to pass orders immediately.

6. I am of the considered opinion that the trial Court was in error in assuming that the revision petitioner would not be prejudiced by appointment of commissioner. What are the contentions that would be raised by the revision petitioner opposing the appointment of a commissioner cannot be foreseen by the Court. After the revision petitioner filed his counter the Court can take decision, on the objection raised and then decide the case on merits. That apart passing orders in an application, though it is not posted for 'hearing' and is posted only for notice and counter, cannot but be said to be irregular. If the trial Court felt that the revision petitioner sought time, only to drag on the proceedings, to file counter, it would have granted time by imposing terms but should not have disposed of the case more so when it is not even posted for hearing.

7. Not granting adequate time for the revision petitioner to file counter, and passing the order in a hurry, when there is no urgency, is an error apparent on the face of the record. For that reason and as there is clear violation of Rule 58 of the Civil Rules of Practice, the order under revision is liable to be and hence is set aside and has to be remitted for disposal on merits.

8. As I am remitting the case, it is not desirable to give an opinion on the question whether a commissioner can be appointed in these facts and circumstances or not. So, I do not wish to express my opinion on the contentions raised by the learned Counsel for the petitioner that the appointment of commissioner is improper.

9. In view thereof, the order under revision is set aside and the case is remitted to the trial Court for fresh disposal on merits, granting time to the revision petitioner to file his counter affidavit in I.A. No. 988 of 2006 on or before 18-6-2007. The trial Court shall dispose of the petition on merits uninfluenced by the observations made in this order. No costs.