IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE j rr Oi cr PRESENT V THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION NO: 3061 OF 2024 V Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to aggrieved by the Decree and Order in I.A.No.2123 of 2024 in O.S.No.31 of 2021 dated 22-10-24 by the Honorable Principal District Judge, Srikakulam. Between: Smt. Dikkala Sridevi, W/o Dikkala Kameswara Rao, aged 59 years R/o Door No 53-41-7/1, Maddilapalem, Visakhapatnam-540013. ...PETITIONER/1®‘ RESPONDENT/PLAINTIFF AND 1. Smt. Lammata Lakshmi, W/o L.L. Naidu, aged 67 years, R/o. Ravivalasa Village and post, Naupada RS, Srikakulam District-532212. 2. Bodda Narayana Rao, S/o Late Appala Naidu, aged about 57 years, R/o. Ravivalasa Village and post, Naupada R.S, Srikakulam District- 532212. 3. Bodda Prabakar Rao, S/o Late Appala Naidu, aged about 54years , R/o. Barijapadu Village, Harischandrapuram Post, Polanki Mandal, Srikakulam District-532430. 4. Bodda Saritha devi, W/o Bodda Narayana Rao, aged 49 years, R/o Ravivalasa village and post, Naupada R.S, Srikakulam district-532212. (Respondent 2 to 4 are not necessary parties in this revision petition ) ...RESPONDENTS/DEFENDANTS 1 TO 3 IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in OS.No.32/21 on the file of the Principal District Judge, Sriakakulam, pending disposal of the above Revision Petition. Counsel for the Petitioner: SRI. SINGURU SAI KRISHNA Counsel for the Respondents: SRI A RAVI SHANKAR The Court made the following: ORDER APHC010553312024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3331] WEDNESDAY,THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION NO: 3061/2024 Between; 1 .SMT DIKKALA SRIDEVI, W/0 DIKKALA KAMESWARA RAO, AGED 59 YEARS RESIDING AT DOOR NO 53-41-7/1, MADDILAPALEM, VISAKHAPATNAM-540013. ...PETITIONER AND 1.SMT LAMMATA LAKSHMI, W/0 L.L.NAIDU, AGED 67 YEARS, R/0. RAVIVALASA VILLAGE AND POST, NAUPADA RS, SRIKAKULAM DISTRICT-532212. 2.BODDA NARAYANA RAO, S/0 LATE APPALA NAIDU, AGED ABOUT 57 YEARS, R/0. RAVIVALASA VILLAGE AND POST, NAUPADA R.S, SRIKAKULAM DISTRICT-532212. 3.BODDA PRABAKAR RAO, S/0 LATE APPALA NAIDU, AGED ABOUT 54YEARS , R/0. BARIJAPADU VILLAGE, HARISCHANDRAPURAM POST, POLANKI MANDAL, SRIKAKULAM DISTRICT-532430. 4.BODDA SARITHA DEVI, W/0 BODDA NARAYANA RAO, AGED 49 YEARS, R/0 RAVIVALASA VILLAGE AND POST, NAUPADA R.S, SRIKAKULAM DISTRICT-532212. ( RESPONDENT 2 TO 4 ARE NOT NECESSARY PARTIES IN THIS REVISION PETITION ) ...RESPONDENT(S): Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toaggrieved by the Decree and Order in LA. No. 2123 of 2024 in O.S I SRS,J C.R.P.No.3061 of 2024 No. 31 of 2021 dated 22-10-24 by the Honorable Principal District Judge, Srikakulam, lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in OS 32/21 on the file of the Principal District Judge, Sriakakulam, pending disposal of the above Revision Petition in this Hon’ble Court and pass Counsel for the Petitioner: 1.SINGURU SAI KRISHNA Counsel for the Respondent(S): 1.A RAVI SHANKAR The Court made the following: ::ORDER :: The above civil revision petition is filed assailing the order dated 22.10.2024 in I.A.No.2123 of 2024 in O.S.No.31 of 2021 on the file of the Principal District Judge, Srikakulam. 2. Heard Sri S. Mohan, learned counsel representing Sri S. Sai Krishna, learned counsel for the revision petitioner and Sri Ravi Shankar, learned counsel appeared for respondent No.1. The petitioner/plaintifffiled a suit in O.S.No.31 of 2021 on the file of the learned Principal District Judge, Srikakulam, seeking partition of the suit schedule property intothree equal shares, by metes and bounds and to allot 1/3'^'^ share with separate possession and for costs of the suit. Pending the suit, defendant No.4 filed I.A.No.2123 of 2024 under Order 26 Rules 1 & 2 of C.P.C, to appoint an Advocate Commissioner to record her cross- examination. The said application was filed on 22.10.2024. 3. ^ Page 3 of 6 SRS.J C.R.P.No.3061 of 2024 In the affidavit filed in support of the petition, it was contended that the posted for the evidence of defendant No.4. An affidavit, in lieu ofchief filed. She could not attend the Court for the confrontation of 4. suit was examination was the contents mentioned in the affidavit and for marking of Will dated 08.06.2005, as she fell ill and sustained injury to her left knee and was unable to walk and the Doctor advised her to rest. It was further pleaded that the medical certificate issued by the Medical Officer, Area Hospital, Narasannapet was annexed. counsel for the petitioner/plaintiff received papers in 5. Learned interlocutory application and sought time to file counter. Despite the same, on day, the learned Trial Court passed an order and appointed the the same Advocate Commissioner to examine defendant No.4 as DW.6 and fixed fee @ Rs.5,000/-. 6. Learned counsel for the petitioner/plaintiff, on 29.01.2025, would submit that the Advocate Commissioner has not executed the warranttill that day. 7. Sri Ravi Shankar, learned counsel appearing for respondent No.1, on the other hand, would submit that the Advocate Commissioner issued notice date for cross-examination. However, the to both parties fixing the petitioner/plaintiff did not cooperate. by order dated 29.01.2025, directed the learned Principal District Judge, Srikakulam, to submit a report regarding the execution of the warrant in I.A.No.2123 of 2024. The learned Trial Court submitted a report. The operative portion of the said report is extracted herewith. “It is to submit, the learned Commissioner has filed memo on 01.11.2024 and submitted he issued notice to both the parties by fixing the date for examination of D.W.6 on 30.10.2024. 8. This Court SRS.J*^ C.R.P.No.3061 of 2024 It is to further submit, the suit in O.S.No.31 of 2021 was called on today i.e., 03.02.2025, for filing report of learned Commissioner, and the learned Commissioner submitted, except issuing notice by fixing date of examination of DW.6 on 30.10.2024, he has not executed the Warrant, for examination of witness/DW.6.” 9. Thus, as seen from the report, though the Advocate Commissioner was appointed on 22.10.2024,cross-examination of the witness has not been completed so far. Rule 58 of Civil Rules of Practice (hereinafter referred to as ‘the Rules’) prescribes service of notice. Sub-rule (1) of the Rules prescribes unless the court otherwise orders, notice of an interlocutory application shall be given to the other parties to the suit or matter or their Advocate not less than three days before the day appointed for hearing of the application. Sub-rule (2) of the Rules prescribes such notice shall be served on the Advocate whenever the party appears by such Advocate. 10. In the case at hand, as narrated supra, notice was served on the Advocate on 22.10.2024 and sought time to file a counter affidavit. Despite the said endorsement, the trial court allowed the application on the same day. 11. When Rule 58 of the Rules prescribes service of notice and also indicates the time to serve the notice, the learned Trial Court, however, the notice was served on the same day and despite the endorsement to file counter, an order was passed. The trial court ought to have provided an opportunity for the respondents in the interlocutory application to file counter. The Trial Court cannot foresee the contention to be raised by the respondents in the counter regarding the appointment of the Commissioner. After filing the counter, the Trial Court has to take a decision on the objection raised and depide the matter on merits. 12. Page 5 of 6 SRS,J C.R.P.No.3061 of 2024 Without giving adequate time to file a counter affidavit and passing an order in haste, when there is no apparent urgency, violates Rule 58 of the Rules. Even if the Trial Court felt that the respondents sought time to file counter, only to drag on the matter, the Trial Court, without a hearing, is not normally expected to pass orders. Since the Trial Court, failed to adhere to the procedure under Rule 58 of the Rules coupled with the fact that the witness has not been examined so far, the order dated 22.10.2024 in I.A.No.2123 of 2024 in O.S.No.31 of 2021 on the file of the Principal District Judge, Srikakulam, is liable to be set aside. Given the facts and circumstances of the case, the Civil Revision Petition is allowed and the order dated 22.10.2024 in I.A.No.2123 of 2024 in O.S.No.31 of 2021 on the file of the Principal District Judge, Srikakulam, is set aside.The I.A.No.2123 of 2024 is restored. The revision petitioner shall file a counter affidavit in the said I.A., within two (02) weeks from today. Upon the filing of a counter affidavit, the Trial Court shall decide the I.A., on merits and pass appropriate orders. No order as to costs. 13. 14. 15. As a sequel, pending miscellaneous petitions, if any, shall stand closed. Sd/- M SRINIVAS ASSISTANT REGISTRAR C<TI^OFFICER //TRUE COPY// SE To, The Principal District Judge, Srikakulam, Srikakulam District. One CC to SRI SINGURU SAI KRISHNA Advocate [OPUC] One CC to SRI A RAVI SHANKAR Advocate [OPUC] The Section Officer, V.R Section, High Court of Andhra Pradesh. Three CD Copies 1. 2. 3. 4. 5. Pmg vna HIGH COURT DATED:19/02/2025 ORDER CRP.No.3061 of 2024 AN 07^ 'fe 0 6 MAR 2025 m Co Current Section ALLOWING THE CIVIL REVISION PETITION WITHOUT COSTS