IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE SECOND (02nd) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3563 OF 2009 Between: Katta Kondayya and two others … Petitioners And: Boddhana Simhadri and another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3563 OF 2009 ORDER: This civil revision petition is directed against the order dated 17.03.2009 in I.A.No.42 of 2009 in O.S.No.264 of 2009, on the file of the Senior Civil Judge, Gajuwaka, wherein the said application filed by the petitioners herein, the plaintiffs, under Order XXVI Rule 10 CPC, for setting side the order of appointment of second advocate Commissioner on a memo filed by the respondents/defendants, was dismissed. 2. Heard the learned counsel for the petitioners/plaintiffs and the learned counsel for the respondents/defendants. Perused the record. 3. The petitioners filed the suit for permanent injunction against the respondents/defendants. The respondents filed written statement contesting the suit. After settlement of issues, the trial of the suit was commenced. The matter stood posted for defendants’ evidence. At that stage, the 1st defendant filed an application I.A.No.241 of 2008 for appointment of a Commissioner to make a local inspection. The trial Court appointed Sri A.Murali Mohan Rao, Advocate as Commissioner to inspect the suit property and note down the topographical features thereof with the assistance of a Mandal Surveyor. It is stated that the said Commissioner could not execute the warrant. Subsequently, the 1st defendant filed a memo before the Court on 03.12.2008 seeking entrustment of the warrant to another Advocate-Commissioner on the ground that Sri A.Murali Mohan Rao could not execute the warrant even after three months of his appointment as Commissioner. The learned Senior Civil Judge thereupon directed the first Commissioner to return the warrant and the same was returned on 10.12.2008 along with a report. In the said report, the Commissioner Sri A.Murali Mohan Rao has stated that in spite of his issuing several notices to the Mandal Surveyor, no assistance was forthcoming and that the entire area is covered by garbage, shrubs and bushes and, therefore, the warrant could not be executed. He took some photographs of the suit property and filed them along with a report. On the same day i.e., 10.12.2008, it appears the learned Senior Civil Judge appointed Sri P.Rama Rao as a Commissioner in the place of Sri A.Murali Mohan Rao. It is stated that the warrant is still pending with the said Commissioner. 4. The plaintiffs filed I.A.No.42 of 2009 alleging that no notice was issued to them and no opportunity to file objections was given and no opportunity of hearing was given before passing the orders on the memo filed by the 1st defendant appointing the second Commissioner. The Court is certainly empowered to appoint a second Commissioner in the place of the first Commissioner when the warrant was returned unexecuted by the first Commissioner for whatever reason. However, the Court below ought to have given an opportunity of hearing to the plaintiffs before passing the order, appointing a second commissioner. The practice of passing judicial orders on memos is deprecated several times. The 1st defendant ought to have filed a regular application supported by an affidavit settingforth the grounds for appointment of a second Commissioner and the trial Court ought to have passed orders on the said application after giving opportunity of hearing to the other side. The orders passed on the memo filed by the 1st defendant appointing a second Commissioner, that too without giving notice and opportunity of hearing to the plaintiffs, is unsustainable. The impugned order, dismissing I.A.No.42 of 2009, refusing to set aside the appointment of second Commissioner in the place of the first Commissioner, is equally unsustainable. Accordingly, the impugned order is set aside and consequently I.A.No.42 of 2009 stands allowed and the appointment of second Commissioner in the place of the first Commissioner on the memo filed by the 1st defendant is also set aside. It is open to the 1st defendant to file a separate application seeking appointment of Commissioner and the trial Court shall dispose of the same on its own merits after giving opportunity of hearing to other side. 5. In the result, the civil revision petition is allowed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 02nd September, 2011 Lrkm.