M. Venkata Ramudu vs B. Bayapa Reddy

G. Bikshapathy, J.—This Civil Revision Petition is filed against the orders of the learned Junior Civil Judge, Tadpatri in I.A.No. 124 of 1998 in O.S.No. 63 of 1998 dated 16-11-1998.

The petitioner is the defendant. The plaintiff filed O.S.No. 63 of 1998 for permanent injunction. He also filed an interlocutory application for appointment of Commissioner for noting down the physical features of the suit-schedule property relating to the existence of the alleged stone wall and the pipe line.

It is the case of the petitioner that after the Commissioner was appointed ex parte by the lower Court, the Commissioner did not give any notice to him and he submitted the report ex parte without giving an opportunity to the petitioner. When an objection was raised before the lower Court, the same was rejected and, therefore, he submits that the order of appointment of Commissioner was illegal. On the other hand, learned Counsel for the respondent submits that the petitioner was not available when the notice was sought to be served by the Commissioner and that service of notice was effected on the brother of the petitioner. Moreover, during the inspection process the son of the petitioner was also present and, therefore, it would not be appropriate for the petitioner to contend that no proper notice was issued to him. Hence, the Civil Revision Petition is liable to be dismissed.

I have considered the respective contentions and the order of the Court below. There is no dispute that the Commissioner was appointed ex parte and as per the order of the lower Court, a notice was served on the brother of the petitioner and it is also noted by the lower Court that the son of the petitioner was present during the inspection. For consideration as to the mode and method of service of notice, this Court has to only rely on the process of service as contained in Order V as no separate rules were set out with regard to the notice to be issued by the Commissioner for executing the warrant. Under Rule 15 of Order V it is stated -

"Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him."

Taking clue from this provision, the service of notice on the brother of the petitioner cannot be found fault with as the petitioner could not explain as to under what circumstances he was not available in the house. Therefore, I have to hold that the service of notice on the brother of the petitioner was proper service. The appointment of Commissioner is not being seriously challenged in this petition. But, the only grievance is that the Commissioner has not given proper notice. It cannot be held that the service of notice was not proper for the simple reason that the petitioner was not available at his residence. It is always open for the Commissioner to serve the notice on the members of his family. In fact, that is what has been done in the instant case.

Under the above circumstances, I do not find any merit in this Civil Revision Petition. But, however, learned Counsel for the petitioner now submits that the lower Court has given a chance to re-appoint the Commissioner again at the cost of the petitioner. Having reconciled, the petitioner submits that he is prepared to deposit the remuneration of the Commissioner and that the Commissioner may be directed to execute the warrant afresh after giving opportunity to the petitioner and also the respondent herein. Learned Counsel for the respondent fairly concedes that in such an event, he has no objection. However, if there is any variation between the earlier report and the later report, the Court has to consider the same and pass appropriate orders in that regard. I am not inclined to observe on the order that may be passed by the lower Court. Suffice it to say that the petitioner is willing for appointment of a Commissioner afresh and to deposit the remuneration.

Under the circumstances, I am inclined to dispose of the Civil Revision Petition with a direction that the lower Court shall appoint the same Advocate - Commissioner who was appointed in I.A. No. 124 of 1998 on depositing of remuneration of Rs. 1,000/- to the Advocate - Commissioner, who shall execute the warrant of commission in accordance with law after giving notice to the parties and also after recording the objections raised by the parties in this regard. No costs. The Civil Revision petition is accordingly disposed of.