ORDER
1. This revision petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter called ‘CPC’) is filed against the interlocutory order dated 20-6-2000 in 1A No.60 of 2000 in AS No.55 of 1996.
2. The petitioner is the third respondent-third defendant in AS No.55 of 1996 on the file of the Court of Senior Civil Judge, Proddutur. The first respondent filed a suit for declaration of title and permanent injunction. The suit being OS No.74 of 1993 was tried along with two others suits and a common judgment was delivered dismissing the said suit. At the trial stage, an advocate commissioner was appointed to measure the suit schedule land, fix the boundary stones and fix the dividing line between the property of the first respondent and the petitioner. The advocate commissioner was also examined as PW3.
3. Against the judgment and decree in OS No.74 of 1993, the first respondent-plaintiff filed AS No.55 of 1996. He filed IA No.60 of 2000 for appointment of advocate commissioner for the purpose of verifying measurements taken by the surveyor who assisted PW3 in taking the measurements. In iA No.60 of 2000 he, inter alia, averred that the advocate commissioner appointed by the trial Court who was examined as PW3 stated that the surveyor has not taken the measurements of the suit schedule property nor prepared the plan Ex.C7 in the presence of PW3. He also alleged that the evidence of PW3 is not clear whether the measurements taken by surveyor as well as PW3 are same. It was also stated that PW3, advocate commissioner, had since been appointed as a Sub-Inspector of Police and as he cannot
be asked to reverify the measurements in the presence of the first respondent as well as the surveyor, a new commissioner must be appointed.
4. The petitioner herein opposed the application contending that second commissioner cannot be appointed unless the Court scraps Court the first commissioner’s report. By the impugned order the trial Court observed that the first respondent only sought for appointment of commissioner for limited purpose of verifying measurements already taken by the surveyor this time in the presence of the commissioner. The lower Court also recorded a finding that admittedly the surveyor did not take the measurements and prepared the plan in the presence of PW3. Therefore, the lower Court appointed advocate commissioner to verify the measurements taken by the surveyor with the assistance of the town surveyor and Mandal surveyor.
5. Sri O. Manohar Reddy, learned Counsel representing Sri V, Laxmi Reddy, learned Counsel for the petitioner, submits that under the provisions of Order XXVI, Rule 9 CPC Second Commissioner to make a local investigation cannot be appointed unless the report of the First Commissioner is rejected or ignored. He also submits that the impugned order has resulted in failure of justice to the petitioner herein.
6. Section 96 CPC lays down that ‘save where otherwise expressly provided in the body of this Code’ an appeal shall lie from every decree passed by any Court exercising original jurisdiction of the Court authorised to hear appeals from the decisions of such Court. In view of Section 121 CPC, which says that the Rules in the first schedule (which consisting Order 1 to Order LI) shall have effect as if enacted in the body of this Code, it cannot be said that the appellate Court has no
power to appoint a commissioner while considering the appeal against a decree. Therefore, the impugned order cannot be said to suffer from exercise of jurisdiction not vested in the appellate Court. Indeed, the appeal is a continuation of suit and while considering the appeal in accordance with the provisions of Order XLI CPC, the appellate Court cannot ignore procedure laid down in CPC in the main body of the Code as well as the Rules contained in Schedule 1.
7. Order XXVI, Rule 9 CPC empowers the Court to issue a commission to any person to make local investigation for the purpose of elucidating any matter in dispute or for the purpose of ascertaining the market value of the property or for ascertaining the amount of mesne profits or damages or annual net profits. Rule 10 of Order XXVI CPC provides the procedure to be followed by the commissioner appointed by the Court. Sub-rule (3) of Rule 10 of Order XXVI CPC provides that where the Court is for any reason dissatisfied with the proceedings of the commissioner, the Court may direct further enquiry to be made as it shall think fit.
8. In the case on hand the lower Court is exercising appellate jurisdiction and as per the provisions of Section 105 CPC the appellate Court is bound to consider any error, defect or irregularity in any interlocutory proceedings before the trial Court as a ground of objection in Memorandum of appeal. In my considered opinion, the application by the first respondent being IA No.60 of 2000 seeking appointment of commissioner to verify the measurements taken by PW3 in furtherance of such right given to a party to the proceedings at the appellate stage. Admittedly, the commissioner appointed by the trail Court, who was examined as PW3, stated that though the commission was issued for measuring the suit schedule
property, he accepted the surveyor’s report, who took measurements on his own, in the absence of PW3. Therefore, a second commissioner was sought. The first respondent did not seek to set aside or reject the report of PW3 Ex.C5, but only sought for a commissioner to verify the measurements already taken as earlier commissioner was not available having joined Government service a new commissioner was required to verify the measurements. There is lacuna in the function performed by PW3 and new advocate commissioner asked to rectify the defect. Such a power in heres in the appellate Court under sub-rule (3) of Rule 10 of Order XXVI CPC for the lower Court found that insofar as the suveryor did not take measurements in the presence of PW3 and insofar as PW3 accepted the plan and measurements given by the surveyor, the report Ex.C5 defective which can be cured by appointment of
commissioner for a clarification only and nothing else. Therefore, it cannot be said that the lower appellate Court has committed illegality or material irregularity in exercise
of jurisdiction.
9. The other aspect of the matter is that after amendment of CPC by CPC (Amendment) Act, 1976, unless the order ofthe lower Court occasions failure of justice or causes irreparable injury to the party, the High Court shall not exercise its revisional jurisdiction (See Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd, ). I am of the considered view the impugned order does not result in failure of justice nor does it cause irreparable loss to the petitioner. This Civil Revision Petition is misconceived.
10. Accordingly, the civil revision petition is dismissed at the admission stage.
