ZEENATHUNNISA Vs. MOHAMMAD ABBAS

JUDGEMENT

(1.) This is a revision brought by the two defendants against the order of the lower Court directing the Advocate Commissioner already appointed in earlier I.A. No.374 of 1982 to reinspect the suit locality and file his report with the assistance of Mandal Surveyor. Earlier on the objections filed by the respondent/plaintiff on the report of the Commissioner, the lower Court directed the Commissioner to revisit the suit land.But as Commissioner's fee was not deposited, mat petition stood dismissed. The order was carried unsuccessfully in the Civil Revision Petition No.8921 of 1987 dated 10-11-1988. The respondent filed the present I.A. again for appointment of another Commissioner. The Court below, while not granting relief for appointment of a second Commissioner, directed the Commissioner already appointed to reinspect the suit locality and to file his report with the assistance of Mandal Surveyor and to comply with all objections raised by the respondent earlier and objections, if any, to be raised by the petitioner. This order was subject to the condition of paying costs of Rs.200/- to the petitioner.

(2.) The learned Counsel for the respondent raised a preliminary objection that as the Counsel for the petitioner has received costs of Rs.200/- from the respondent, the petitioner cannot prefer the Civil Revision Petition. Hehas filed certified copy of the order dated 7-3-1994 showing endorsement on the docket that the costs of Rs.200/- have been paid by the respondent to the counsel for the petitioner. He has also filed affidavit of the advocate appearing in the lower Court to the effect that costs have been paid. On the other hand, the counsel for the petitioner disputes this, and filed affidavit of the advocate appearing for the petitioner in the Court below. In view of this conflicting affidavits it is not possible to give a finding on this, unless further enquiry is made. However, it is not necessary to pursue this as the Civil Revision Petition fails on merits as can be seen below.

(3.) Mr. T. Niranjan Reddy, learned Counsel for the petitioner vehemently contended that in view of the earlier dismissal of the petition on the ground of non-deposit of the Commissioner's fee, which was also confirmed by this Court in Civil Revision Petition, the respondent is barred by the principle of res judicata from seeking the same relief again. He relied on Arjun Singh vs. Mohindra Kumar in which it was held:-