HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION No.1301 of 2014
Date: September 26, 2014
Between:
1. Manda Babu Rao & another.
… Petitioners and
1. Bandi Kumaraswamy & 21 others.
… Respondents * * * HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION No.1301 of 2014
O R D E R:
The petitioners herein are third parties to the suit, O.S.No.93 of 2009, on the file of the learned II Additional District Judge, Warangal. The plaintiffs in the said suit filed I.A.No.1316 of 2010 in I.A.No.1326 of 2009 in O.S.No.93 of 2009 for grant of police aid to implement the status quo order granted earlier. By docket order dated 19.07.2011, the trial Court opined that instead of granting the relief sought it would be more appropriate to appoint a Commissioner to measure the lands of the plaintiffs and the defendants and fix the boundaries. Aggrieved by the said order, this civil revision petition was filed and leave was granted to the third party petitioners to do so by this Court on 23.04.2014.
2. By a separate order dated 25.04.2014, this Court granted interim stay of all further proceedings in the suit, O.S.No.93 of 2009, on the file of the learned II Additional District Judge, Warangal. This order was granted for a period of eight weeks and expired thereafter due to efflux of time. However, it is stated by the learned counsel appearing for the parties that the order under revision was not acted upon.
3. Be it noted that the plaintiffs in the suit are arrayed as respondents 1 and 2 herein while the defendants are shown as respondents 3 to 22. The learned counsel for the petitioners filed Memo dated 20.09.2014 giving up the civil revision petition in so far as the un-served respondents are concerned. The un-served respondents are some of the defendants in the suit. Sri T.S. Anand, learned counsel, entered appearance for the contesting first and second respondents, who are the plaintiffs in the suit.
4. Heard both sides.
5. It is an admitted fact that the petitioners herein filed a petition under Order 1 Rule 10 C.P.C. in I.A.No.234 of 2013 in O.S.No.93 of 2009 seeking to be impleaded as defendants to the suit. This application was pending consideration by the time the trial Court passed the order under revision. The petitioners herein seem to have laid an independent claim as regards one item out of the suit property. Perusal of the order under revision reflects that the trial Court was of the opinion that the dispute between both the parties could be effectively resolved if a Commissioner was appointed to measure the lands and fix boundaries. The trial Court obviously lost sight of the fact that a third party petition was pending consideration and in the event the same was permitted, there would be three sets of parties to the litigation and not merely two. The opinion expressed by the trial Court that the dispute between the two existing parties was amenable to resolution through appointment of a Commissioner was therefore premature, as it did not take into account the interest claimed by the third party whose implead petition was still pending consideration. It is no doubt open to the trial Court to resort to appointment of a Commissioner under the provisions of Order XXVI Rule 9 C.P.C. But before doing so, the Court necessarily has to form a reasoned opinion that such a step was warranted and to reach such a conclusion, the trial Court obviously had to hear all the parties concerned. In the present case, the order under revision was passed upon hearing the existing plaintiffs and defendants ignoring the implead petition filed by the third parties, who are the petitioners in this C.R.P. This Court is therefore of the opinion that the trial Court ought to have first taken up the implead petition for consideration and decided the entitlement of the third parties to come on record in the suit, O.S.No.93 of 2009, before exercising its power under Order XXVI Rule 9 for appointment of a Commissioner.
6. In any event, the order under revision has admittedly not been acted upon owing to the limited stay orders granted by this Court even after their expiry. The order under revision shall accordingly remain in abeyance until the trial Court hears and passes appropriate orders in I.A.No.234 of 2013 filed by the petitioners herein in O.S.No.93 of 2009. If upon hearing the said I.A., the trial Court continues to be of the opinion that appointment of a Commissioner is warranted, it shall give effect to the order under revision. The trial Court shall endeavour to dispose of I.A.No.234 of 2013 expeditiously and preferably, within four (4) weeks from the date of receipt of a copy of this order.
7. The civil revision petition is disposed of with the above directions. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.
SANJAY KUMAR, J.
Date: September 26, 2014. BSB HON’BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION No.1301 of 2014
Date: September 26, 2014
BSB