None 2165 of 2024 on 15 February 1966

1. Anusuri Krishna, S/o Veeranna, aged53,R/o Ganganapallivillage,Kakinada Rural Mandal, Kakinada District.Kakinada Rural Mandal, Kakinada District.

2. Gandham Nagababu, S/o Venkateswarlu, aged 45, R/o[Ganganapalli]village, Kakinada Rural Mandal, Kakinada District.village, Kakinada Rural Mandal, Kakinada District.

3. Pitta Lakshmi Narayana,, S/oRatna Kumar, aged 35,[R/o][ Ganganapalli]village, Kakinada Rural Mandal, Kakinada District.village, Kakinada Rural Mandal, Kakinada District.

4.. Tirumalasetty Gangarao,, S/o Ramudu, aged 45,[R/o][ Ganganapalli]village, Kakinada Rural Mandal, Kakinada District.village, Kakinada Rural Mandal, Kakinada District.

...PETITIONERS/RESPONDNTS 1,2,4,6

AND

1. Kakarla Govindu,. Kakarla Govindu, S/o Satyanarayana,[R/o][ D.No.3-]37, Domada village, Pedapudi Mandal, Kakinada District37, Domada village, Pedapudi Mandal, Kakinada District

2. Duppalapudi Satyanarayana,, S/o Seshayya, aged 45,[R/o]Ganganapalli village, Kakinada Rural Mandal, Kakinada[District.]Ganganapalli village, Kakinada Rural Mandal, Kakinada[District.]

V

3. Kona Veerababu,, S/o Anjaneyulu, aged32 R/o Ganganapalli villageKakinada Rural Mandal, Kakinada District.

...RESPONDENTS/DEFENDANTS 3 AND 5

lA NO: 1 OF 2n9d

Petition under Section 151 CPCpraying that in the circumstancesstated in the affidavit filed in support of the petition, the High Court may bepleased to grant stay of all further proceedings in I.A No. 472 of 2024 inO.S No. 496 of 2016 passed by the Principal Junior CivilJudge, Kakinadapending disposal of the present Civil Revision Petition lA NO: 2 OF 7n9A

Petition under Section 151 CPCpraying that in the circumstancesstated in the affidavit filedi- - in support of the petition, the High Court may[be]pleased to amend theprayer in I.A No.1 of 2024 in CRP No. 2165 of 2024asto grant stay of all further proceedings in O.S No. 496 of 2016 passedby the Hon'ble Principal Junior Civil Judge, Kakinada" instead of grant stayof all further proceedings in I.A No. 472 of 2024 in O.S No. 496 of 2016passed by the Principal Junior Civil Judge, Kakinada"

Counsel for the Petitioners: SRI P VIVEK

Counsel for the Respondents: SRI A K KISHORE REDDY

The Court made the following order:

APHC010413142024

IN THE HIGH COURT OF ANDHRA PRADESHAT AMARAVATI(Special Original Jurisdiction)

FRIDAY ,THE TWENTY FIFTH DAY OF APRILTWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE NINALA JAYASURYA

CIVIL REVISION PETITION No: 2165 of 2024

Between:

Anusuri Krishna and Others

...PETITIONER(S)

AND

Kakarla Govindu and Others

...RESPONDENT(S)

Counsel for the Petitioner(S):I.Mr.P.VIVEK

Counsel for the Respondent(S):I.Mr.A.K.KISHORE REDDY

The Court made the following Order:

The 1®* respondent in the Revision Petition is the plaintiff, who filed asuit in O.S.No.496 of 2016 on the file of the Court of Principal Junior CivilJudge, Kakinada, against the Revision Petitioners herein and others statinginter alia, that originally the plaint schedule property admeasuring Ac. 1.15cents was owned by Smt.Gangabathula Sooramma, who purchased[the][ same]through registered Sale Deed dated 15.02.1966 and on her demise, the saidland was devolved upon her son one Mr.Gangabathula[Gandhi and][ on]hisdeath, the same was devolved upon his eight children by way of succession,that they got divided their landinto house plots and the1®* respondentpurchased Plot Nos.7 & 8 through Registered Sale Deed and is in possessionand enjoyment of the same. The revision petitioners are contesting the said suit.

2. Initially, the 1®* respondent sought relief of permanent injunction andsubsequently sought amendmentof therelief for declarationoftitleandrecovery of possession. ThelearnedTrialCourtformulatedtheissues.Subsequently, in view of the amendment of the plaint seeking declaration oftitle and possession, additional issues were framed.subsequently sought amendmentof therelief for declarationoftitleandrecovery of possession. ThelearnedTrialCourtformulatedtheissues.Subsequently, in view of the amendment of the plaint seeking declaration oftitle and possession, additional issues were framed.

3. While so, the 1®' respondent / plaintiff filed an application[under Order].XXVI Rule 9 r/w Section 151 of Code of Civil Procedure (for short ‘C.P.C.’),seeking appointment of an Advocate Commissioner to measure the propertiesof both the parties by fixing its boundaries in respect[of][ their][ documents][ with]the assistance of the Mandal Surveyor and to draw a plan and to file a reportbefore the Court,the said application was resisted by the petitioners herein byfilingcounter.They,inter alia,pleadedthat thepetition wasfiledforgathering evidence through Commissioner’s report, thatit is very difficult toidentify the suit schedule property and that it is[not the][ stage][ to][ appoint][ the]Commissioner.

4. ThelearnedPrincipalJuniorCivilJudge,afterconsideringthesubmissions madeonbehalfof bothsides,allowpdtheapplicationandappointed an Advocate Commissioner to measure the property[of][ both][ the]parties gs per their documents with the assistance[of][ Mandal][ or][ any][ licensed]surveyor.submissions madeonbehalfof bothsides,allowpdtheapplicationandappointed an Advocate Commissioner to measure the property[of][ both][ the]parties gs per their documents with the assistance[of][ Mandal][ or][ any][ licensed]surveyor.

5. Aggrieved by the said order of appointment of Advocate[Commissioner]the petitioners / respondents-defendants filed the[present][ Revision][ Petition.]the petitioners / respondents-defendants filed the[present][ Revision][ Petition.]

/.6.Mr.P.Rajasekhar,learnedarguingcounselforthepetitionersdefendants made submissions, inter alia, that the order under challenge[ is][ not]sustainable as the Court below failed to consider the[matter][ in][ the][ correct]perspective. Referring to the prayer sought for in[the][ application,][ he][ submits]that the initial burden lies on the 1®' respondent / plaintiff to establish his titleover the plaint schedule property and that identification[of][ the][ same][ cannot][ be]assigned to the Advocate Commissioner and the order[under][ revision][ which]would enable therespondent to gather evidence, is[not][ tenable][ in][ Law.][ He]submits that at the stage of trial or fag end of the[trial,][ an][ application][ can][ be].filed,if any clarification is required and the Court[has][ to][ record][ its][ satisfaction,]thoughit has power to appoint an Advocate Commissioner.[He][ submits][ that]thelearnedTrialJudgedidnotrecordhissatisfactionandinsuch circumstances, the order under revision is liable to[be][ set][ aside.][ Relying][ on]the decisions in 1) Batchu Narayana Rao v. Batchu Venkata[Narasimha]Rao12) Papasani Sankara Reddy v. Kandula Hanumantha Reddy[&]Others^, 3) Koduru Sesha Reddy v. Gottigundala Venkata[Rami][ Reddy],4) Ram Dass v. Labh Singh (Since deceased) through[Lrs.,][ &][ Others^][ 5)]A.Gopal Reddy v. R.Subrahmanyam Reddy and another®[and][ 6)][ Seenu][ @]Ramadass v. S.Palani & Others®, he seeks to allow the[Revision][ Petition][ by]emphasizing that the purpose of filing the applicationfor appointment ofAdvocate Commissioner is not to gather evidence.

7. On the other hand, the learned counsel for therespondent[sought][ to]sustain the order under challenge,inter alia, contendingthat thereisnosuch, no interference is called for byillegality or perversity in the order and asthis Court. He submits that initially, the suit was[filed][ for][ permanent][ injunction.]later by way of amendment,relief of declaration of[ and][ recovery]ofpossession was sought. He submits that as it is the[case][ of][ the][ petitioners][ /]defendants that the plaint schedule property and the[property][ claimed][ by][ them]While contendingsustain the order under challenge,inter alia, contendingthat thereisnosuch, no interference is called for byillegality or perversity in the order and asthis Court. He submits that initially, the suit was[filed][ for][ permanent][ injunction.]later by way of amendment,relief of declaration of[ and][ recovery]ofpossession was sought. He submits that as it is the[case][ of][ the][ petitioners][ /]defendants that the plaint schedule property and the[property][ claimed][ by][ them]While contendingaredifferent, measurement of the land was necessitated.that the Commissioner can be appointed pre-trial or[post][ trial,][ measuring][ of]the land does not amount to collection of evidence,[he][ submits][ that][ there][ is][ no]justification for opposing the appointment of the Advocate[Commissioner,]that the Commissioner can be appointed pre-trial or[post][ trial,][ measuring][ of]the land does not amount to collection of evidence,[he][ submits][ that][ there][ is][ no]justification for opposing the appointment of the Advocate[Commissioner,]

^ 2010(5) ALD 83

^ 2010(5) ALD 83

" 2013 (4) ALD 322^ 2005 Supreme (AP) 5482017 see OnLine P&H 6238^ 2013 (4) ALD 347^ 2005 Supreme (AP) 5482017 see OnLine P&H 6238^ 2013 (4) ALD 347

® 2022 Supreme (Mad) 1498

moreparticularly, as the petitioners / defendants will[have][ an][ opportunity][ to]file their objections to the Commissioner’s report[and][ can][ cross][ examine][ him]for eliciting the correct facts / truth.Making the[said][ submissions][ and][ relying]on the decisions in 1) Ponnusamy Pandaram v. The Salem[Vaiyappamalai]Jangamar Sangam^ 2) P.Moosa Kutty v. Mr.K.P.Ramakrishna[Ayyar®][ and]3) Shadaksharappa v. Kumari Vijayalakxml & Others®,[the][ learned][ counsel]urges for dismissal of the Revision Petition.file their objections to the Commissioner’s report[and][ can][ cross][ examine][ him]for eliciting the correct facts / truth.Making the[said][ submissions][ and][ relying]on the decisions in 1) Ponnusamy Pandaram v. The Salem[Vaiyappamalai]Jangamar Sangam^ 2) P.Moosa Kutty v. Mr.K.P.Ramakrishna[Ayyar®][ and]3) Shadaksharappa v. Kumari Vijayalakxml & Others®,[the][ learned][ counsel]urges for dismissal of the Revision Petition.

8. This Court has considered the submissions made by the[counsel][ on]both sides asalso the decisions referred to supra. Perused the material[on]record.

On an appreciation of the matter, the point that arisesforconsideration is: Whether the Orcjer of appointment[of][ an][ Advocate]CommissionermadebythelearnedTrialCourt,warrantsinterference by this Court under Article 227 of the[Constitution][ of]India?

9. Before adverting to the Order under Revision,it[may][ be][ appropriate][ to]note that the power of the Court under Order XXVI,[Rule][ 9]of C.P.C.,ishasto be exercisedin a judicious manner.discretionary,and the samedepending on the facts and circumstances of each case.It has to appreciatethe overall case by taking into consideration the pleadings[of][ the][ parties][ and]thereliefs claimed with reference to the controversy between[the][ parties][ and]the necessity to appoint Advocate Commissioner in deciding[the][ dispute.]It is .' 1985 (1) Mad U 380" 1953 (1) Mad U 632® 2023 see Online Kar 53" 1953 (1) Mad U 632® 2023 see Online Kar 53

settled Law that an Advocate Commissioner can be appointed at any stage ofthe suit or during the pendency of the appeal.

10. In the present case, the application seeking appointment[of][ Advocate]Commissioner was filed on the premise that the properties claimed by therevision petitioners / defendants are different andif the same are ascertainedby a Surveyor by fixing the boundaries with reference[to][ the][ documents][ and][ a]report is filed by the Commissioner, the same would meet the ends of justiceand by virtue of the appointment of Commissioner, no prejudicewill be causedto eitherparties.Asnotedearlier,thepetition was opposed,inter alia,contending that the sameis filed for gathering evidence and as such, theCommissioner cannot be appointed.Commissioner was filed on the premise that the properties claimed by therevision petitioners / defendants are different andif the same are ascertainedby a Surveyor by fixing the boundaries with reference[to][ the][ documents][ and][ a]report is filed by the Commissioner, the same would meet the ends of justiceand by virtue of the appointment of Commissioner, no prejudicewill be causedto eitherparties.Asnotedearlier,thepetition was opposed,inter alia,contending that the sameis filed for gathering evidence and as such, theCommissioner cannot be appointed.

11. ThelearnedTrial Court allowedthe applicationwhilerejectingthesubmissions made on behalf of the revision petitioners/ defendants opiningthat the measurementof thepropertiesof boththeparties asper theirdocuments does not amount to gathering evidence and it would help in betterappreciation of evidence produced by. the parties.Thisitself is sufficient toholdthat the learnedTrialCourt,aftersatisfyingitself,hadorderedtheappointment of Commissioner. Therefore, the contention[advanced][ on][ behalf]of the revision petitioners that the learned Trial Judge had not recorded hissatisfaction, cannot be accepted.submissions made on behalf of the revision petitioners/ defendants opiningthat the measurementof thepropertiesof boththeparties asper theirdocuments does not amount to gathering evidence and it would help in betterappreciation of evidence produced by. the parties.Thisitself is sufficient toholdthat the learnedTrialCourt,aftersatisfyingitself,hadorderedtheappointment of Commissioner. Therefore, the contention[advanced][ on][ behalf]of the revision petitioners that the learned Trial Judge had not recorded hissatisfaction, cannot be accepted.

12. Insofarastheothersubmissionmadeonbehalfoftherevisionpetitioners, there can be no second opinion that the[initial][ burden][ lies][ on][ the]plaintiff to establishhistitle over the propertyin dispute. However,if thepetitioners, there can be no second opinion that the[initial][ burden][ lies][ on][ the]plaintiff to establishhistitle over the propertyin dispute. However,if the parties seek to take aid of the provision of Law i.e., Order XXVI, Rule 9 ofC.P.C., for resolution of thp dispute, the same cannot be denied, except if theinvocation of the said provisionis for the purpose of gathering evidence. Bethat as it may.

13. The issue with regard to appointment of Advocate Commissioner,[is][ the]"subject matter for consideration in a number of cases and the applicability ofthe decisions rendered therein, depends upon the facts[and][ circumstances][ of]each case."subject matter for consideration in a number of cases and the applicability ofthe decisions rendered therein, depends upon the facts[and][ circumstances][ of]each case.

14. In Batchu Narayana Rao’s case referred to supra, a learned Judge ofthe erstwhile Common High Court of Andhra Pradesh at Hyderabad, dealingwith an order passed by the Trial Court, appointing[a][ Commissioner][ on an]application filed by the respondent / plaintiff in[a][ suit][ for][ declaration][ of][ title][ and]recovery of possession, opined that a Commissioner[cannot][ be][ appointed][to]gather evidence for and on behalf of any party and[it][ is][ for][ the][ party][ concerned]to establish his case and feasibility of appointment[of][ a][ Commissioner,][ would]be considered, if Court feels that inspection and further enquiry is necessary.having regard to the uncertainty, that came into existence,[after][ the][ trial][ has]progressed to certain extent.The learned Judge allowed[the][ revision][ by]setting aside the order under revision.the erstwhile Common High Court of Andhra Pradesh at Hyderabad, dealingwith an order passed by the Trial Court, appointing[a][ Commissioner][ on an]application filed by the respondent / plaintiff in[a][ suit][ for][ declaration][ of][ title][ and]recovery of possession, opined that a Commissioner[cannot][ be][ appointed][to]gather evidence for and on behalf of any party and[it][ is][ for][ the][ party][ concerned]to establish his case and feasibility of appointment[of][ a][ Commissioner,][ would]be considered, if Court feels that inspection and further enquiry is necessary.having regard to the uncertainty, that came into existence,[after][ the][ trial][ has]progressed to certain extent.The learned Judge allowed[the][ revision][ by]setting aside the order under revision.

15. In Kandula Hanumantha Reddy’s case referred to supra,[a][ learned]Judge of the erstwhile High Court of Andhra Pradesh,[was][ not][ inclined][ to]interfere with the order of the Trial Court, dismissing the application filed under.Order XXVI Rule 9 of C.P.C.The learned Judge observed[that][ the]initialJudge of the erstwhile High Court of Andhra Pradesh,[was][ not][ inclined][ to]interfere with the order of the Trial Court, dismissing the application filed under.Order XXVI Rule 9 of C.P.C.The learned Judge observed[that][ the]initial burden is on the plaintiff to prove the plaint averments by adducing cogentoral and documentary evidence and that even though the Order XXVI, Rule 9C.P.C.,envisages appointment of aCommissioner for[elucidation]of thematters in dispute, ordinarily, the Commissioner is appointed, where the Courtis of the opinion that the available evidence is not enough to arrive at proper•and correct conclusion and for effectual adjudication of the disputes involvedin the suit.

16. A.Gopala Reddy is a case, wherein, in a suit seeking relief of perpetualinjunction, the application filed under Order XXVI, Rule 9 of C.P.C., filed bythe1defendantwasallowed.ThelearnedJudge,opinedthattheappointment of Commissioners to note the physical features[or][ to][ undertake]other related activities in a suit for injunction is a rarity. While setting aside theorder under challenge, the learned Judge, inter alia, opined that “the occasionto appoint an Advocate Commissioner would arise, if only the trial of the suit isin progress and atypical question,which needstheexaminationby aCommissioner arise. The appointment of Commissioner cannot be made atthethreshold.Suchaneffort would betreated as a measureto gatherevidence."injunction, the application filed under Order XXVI, Rule 9 of C.P.C., filed bythe1defendantwasallowed.ThelearnedJudge,opinedthattheappointment of Commissioners to note the physical features[or][ to][ undertake]other related activities in a suit for injunction is a rarity. While setting aside theorder under challenge, the learned Judge, inter alia, opined that “the occasionto appoint an Advocate Commissioner would arise, if only the trial of the suit isin progress and atypical question,which needstheexaminationby aCommissioner arise. The appointment of Commissioner cannot be made atthethreshold.Suchaneffort would betreated as a measureto gatherevidence."

17. Koduru Sesha Reddy’s case referred to supra, is yet[another][ decision]of alearned Judgeof theerstwhileHighCourtof AndhraPradeshatHyderabad.In the said case, the learned Judge was dealing with a matter,whereintheTrialCourtappointedanAdvocateCommissioneronanapplication made by the petitioner / plaintiff in a suit for perpetual injunction.of alearned Judgeof theerstwhileHighCourtof AndhraPradeshatHyderabad.In the said case, the learned Judge was dealing with a matter,whereintheTrialCourtappointedanAdvocateCommissioneronanapplication made by the petitioner / plaintiff in a suit for perpetual injunction.

Subsequently, the defendants filed another application seeking appointmentofAdvocate Commissioner on the premise that the earlier Commissioner wasappointed, without notice and the Trial Court allowed the said application. Inthe revision filed by the petitioner, questioning the order of the appointment ofsecond commissioner, the learned Judge, inter alia, opined that in a suit forperpetual injunction, the appointment of a Commissioner[to][ note][ down]the.physical features, cannot precede recording of evidence, that the parties haveto adduce their evidencein support of their respectivecontentionsastopossession. The Court would be justified to appoint[Advocate][ Commissioner]only if it feels that the evidence .on record is not[sufficient][ to] record a[ finding]for the purpose of granting or refusing the relief of injunction. The learnedJudgein the facts and circumstancesof the case, allowedtheRevisionPetition holding that the report of the Commissioner appointed on the requestof the petitioner / plaintiff, cannot be made use of, for the purpose of decidingthe dispute in the suit and that the appointment of Commissioner through the•Orderinthe subsequentI.A.,filedbytherespondents/defendantsispremature. The other decisionsrelied onby the learnedcounselforthepetitioner are of persuasive value only. Be that as it may.Even the decisionsrelied on by the learned counsel for the respondents, except the decision inK.Dayanand & Another v. P.Sampath Kumar rendered by a learned Judgeof the erstwhile High Court of Andhra Pradesh, are only of persuasive value.

18. In Badana Mutyalu & Others v. Palli Appalaraju.10a learned Judge ofthe erstwhile High Court of Andhra Pradeshat Hyderabad,[examined]thematter with reference to appointment of Advocate Commissioner[in][ a][ suit][ for]permanent injunction. The facts of the said case are more or less similar to thecase on hand. The revision petitioners in the said case are the defendants inthe suit.The respondent / plaintiff, pending suit, filed an application underOrderXXVI.Rule9ofC.P.C.,prayingforappointmentofAdvocateCommissionerto take measurementsof theproperty mentionedintheRegistered Sale Deed and to find out whether the ‘ABCD’ plan marked vacantsite is part and parcel of the property mentioned in the said registered saledeed or not with the help of a qualified surveyor.It was contended on behalfofthepetitionersthattheapplicationforappointmentofanAdvocateCommissioner wasfiledtocollecttheevidence,thatearlierAdvocateCommissioner was appointedtonote down the physicalfeaturesoftheproperty and therefore, another Advocate Commissioner cannot be appointedto localize the ‘ABCD’ site which is the subject matter[of][ the][ suit][ between][ the]parties.Placing reliance on the decision of Dammalapati Satyanarayana v.Datia Venkata Ramabhadra Raju @ D.V.R.Raju (reported in 2006 (4) ALD675), the learned Judge after referringto the decisions renderedby HighCourtofMadrasinPonnusamyPandaram(referredtosupra),Mahendranath Parida v. Punanda Parida (AIR 1988, Orissa 248) as alsotwo Division Benches of the erstwhile High Court of[Andhra][ Pradesh][ held][ that]there is no error of jurisdiction committed by the[Trial][ Court][ and][ dismissed][ the]the erstwhile High Court of Andhra Pradeshat Hyderabad,[examined]thematter with reference to appointment of Advocate Commissioner[in][ a][ suit][ for]permanent injunction. The facts of the said case are more or less similar to thecase on hand. The revision petitioners in the said case are the defendants inthe suit.The respondent / plaintiff, pending suit, filed an application underOrderXXVI.Rule9ofC.P.C.,prayingforappointmentofAdvocateCommissionerto take measurementsof theproperty mentionedintheRegistered Sale Deed and to find out whether the ‘ABCD’ plan marked vacantsite is part and parcel of the property mentioned in the said registered saledeed or not with the help of a qualified surveyor.It was contended on behalfofthepetitionersthattheapplicationforappointmentofanAdvocateCommissioner wasfiledtocollecttheevidence,thatearlierAdvocateCommissioner was appointedtonote down the physicalfeaturesoftheproperty and therefore, another Advocate Commissioner cannot be appointedto localize the ‘ABCD’ site which is the subject matter[of][ the][ suit][ between][ the]parties.Placing reliance on the decision of Dammalapati Satyanarayana v.Datia Venkata Ramabhadra Raju @ D.V.R.Raju (reported in 2006 (4) ALD675), the learned Judge after referringto the decisions renderedby HighCourtofMadrasinPonnusamyPandaram(referredtosupra),Mahendranath Parida v. Punanda Parida (AIR 1988, Orissa 248) as alsotwo Division Benches of the erstwhile High Court of[Andhra][ Pradesh][ held][ that]there is no error of jurisdiction committed by the[Trial][ Court][ and][ dismissed][ the]

revisionpetition.It may be profitable to refer to[the][ relevant][ portion][ of][ the]order of the learned Judge which reads thus:

“16It has been held that a plaintiff could have a[Commissioner][ appointed][ for]local investigation even ex-parte on the date of the[suit.]It has been so held by aDivisionBenchofthisCourtinC.VeerannaVs.C.Venkatachalam[MANU/AP/0129/1959AIR1959 AP1701958 ALT792]consistingofP. Chandra Reddy, Offg. C.J. (as he then was) and SeshachalapatiJ.It wasargued before the learned judges that Rule 18 of Order[25][ contemplates][ the]issueof notices before the appointment of the Commissioner.[This][ contention]wasrejected andit was held that Rule 18 contemplated[the][ issue][ of][ notices][ after]the appointment of a Commissioner, but not before such[appointment.][ There]was, therefore, no mandate in the statute that an ex[parte][ Commissioner][ could]not be appointed. The learned judges observed:

Rote18contemplatesasituationaftertheappointmentofaCommissioner andnotbeforethe commissionisissued.Thereisnothing in Rule 9 of warrant a contention that a duty[is][ cast][ on][ the][ Court]to issue notice before an order is passed under that[rule.]It is open to theCourtto issue anexparte commissionerifit deemsthatalocalinvestigation is requisite for the purpose of the suit...Commissioner andnotbeforethe commissionisissued.Thereisnothing in Rule 9 of warrant a contention that a duty[is][ cast][ on][ the][ Court]to issue notice before an order is passed under that[rule.]It is open to theCourtto issue anexparte commissionerifit deemsthatalocalinvestigation is requisite for the purpose of the suit...

17. This decision of the Division bench was followed[in][ Savitramma][ and][ another]V.B. Change Reddy [1988(1) ALT 353], In that case,it[was][ held;]V.B. Change Reddy [1988(1) ALT 353], In that case,it[was][ held;]

V.

16. The question as to when a Commissioner could be[appointed][ should]be within the wide discretion of the trial Court, butit cannot be said thatnocommissioner could be appointed before the issues ere[framed][ or][ the]evidence is ledbe within the wide discretion of the trial Court, butit cannot be said thatnocommissioner could be appointed before the issues ere[framed][ or][ the]evidence is led

18. Soit has been held that either party to the suit[could][ have][ a][ Commissioner]appointed even before the triah In view of the above[decisions,]I hold thatinsituationswherethereiscontroversyastoidentification,locationormeasurement of the land, local investigation should[be.][ done][ at][ an][ early][ stage so]that the parties are aware of the report of the Commissioner[and][ go][ to][ trial]prepared. The party against whom the report may have[gone][ may][ choose][ to]adduce evidence in rebuttal.

11a learned

19. In Band! Samuel and another v. Medida Nageswara Raoa learnedJudge of the erstwhile Common High Court for the State of Telangana and forthe State of Andhra Pradesh at Hyderabad referred to[a][ catena][ of][ cases][ with]reference to appointment of Advocate Commissioners andit may be profitable*torefertotherelevantparagraphsfromthesaiddecision,forbetterappreciation:Judge of the erstwhile Common High Court for the State of Telangana and forthe State of Andhra Pradesh at Hyderabad referred to[a][ catena][ of][ cases][ with]reference to appointment of Advocate Commissioners andit may be profitable*torefertotherelevantparagraphsfromthesaiddecision,forbetterappreciation:

7. The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a partytocollectevidence wherethepartycanprocurethesame.AnAdvocateCommissioner can be appointed under Order XXVI Rule[9][ of][ the][ Code][ of][ Civil]Procedure 1908 Inter alia for elucidating any matter in dispute. Thereis someconfusionastoinwhatcircumstancesanadvocate-commissioneristobeappointedin a civil suit. To answer this question,[we][ have]to understand theexpression of elucidating any matter in dispute in Order 26, Rule 9 of CPC. Thereare several expressions in this regard. Some are under the impression that noadvocate commissioner is to be appointed in suit for injunction. For example, theclaim for injunction made by the plaintiff is based on the plea that there is onlyone way to his house and that he is being prevented by the defendant from usingsaid way, any amount of evidence in this regard may not help the Court to rendera correct finding on this aspect, as evidence in this regard would be available onthe spot at the ground/fieid. So, a situation such as this would definitely fall withinthe expression of elucidating any matter in dispute to avoid adducing of muchoral evidence by consuming time of Court and parties and ultimately with nopossibility of practical approach for accurate determination of thelis. No doubt,before appointing an advocate commissioner, Court shall examine pleadings,relief claimed and real controversy between parties. Court has to keep in mindtherefrom to decide whether thereis an actual necessity to appoint advocatecommissioner to decide any real controversy between parties.

8. No doubt an Advocate-Commissioner cannotbe appointed for making anenquiry about factum of possession of the property in dispute, which is nothing,but fishing of information and not elucidating any matter in dispute.

9. There are circumstancesin which,it is only a Commissioner[inspecting][ the]property promptly and recording timely assessment of[what][ obtains][ relating][ to][ the]property from threat of changing or obliterating the[existing][ physical][ features][ lo]destroy valuable evidence on ground,couldaloneassistcourtstodecidecorrectly.If such prompt actions are not taken,it[may][ destroy][ the][ valuable][ rights]of the parties.

10. In Bandaru Mutyalu Vs. Palli Appalaraju (2013 (5)[ALD][ 376][ -][ 2013][ (6)][ ALT]26),it was held that in situations where there is[controversy][ as][ to][ identification,]location or measurement of the land, local investigation[should][ be][ done][ at][ an]early stage so that the parties are aware of the report[of][ the][ Commissioner][ and]go to trial prepared and the object of local investigation[under Order][ XXVI,][ Rule][ 9]oftheCode which cannotbelittled for that conclusion placedreliance uponSanjaySon of Namdeo Khandare Vs. Saheb Rao Kachru Khandare,[2001](4)CCC 416; Ponnusamy Pandaram Vs. The Salem Vaiyappamalai[Jangamar]SangamAIR 1986 Mad.33, Mahendranath Panda Vs. Purnanada &[Others,][ AIR]1988 Ori. 248; C.Veeramma v. C.Venkatachalam, 1958[ALT][ 792][ =][ AIR][ 1959][ AP]170, and Savitramma v. B.Changa Reddy, 1988 (1) ALT.

11. In J. Satyasri Rambabu Vs. A. Anasuya, 2005 (6)[ALD][ 389,][ this][ Court]atparagraph No.6 held as under:It is no doubt true that[the][ Courts][ are][ normally]reluctant to appoint a Commissioner for noting physicalfeaturesof thesuitschedule property, particularly in a suit for injunctionsince the same wouldamount to collecting evidence in favour of one of the[parties.][ However,][ there][ is]absolutely no reason to hold that it is a 'hard and[fact][ rule.][ Having][ regard][ to][ the]factsand circumstances of the case and particularly whenever[the][ Court][ prima]facie finds that there is an attempt on the part of[one][ of][ the][ parties][ to alter][ the]physical features of the suit property and it is necessaryto take note of the same,it is always opento the Court to appoint a Commissioner for inspection[of][ such]property.

in12.In Mallikarjuna Srinivasa Gupta Vs. K. Sheshirekha,[2006][ (3)][ ALD][ 362,]which case, a suit was filed for declaration of title[and][ an][ application][ was][ filed]contending that the defendant therein encroached a[portion][ of][ the][ site.][ The][ stand]of the defendant therein was that he has not encroached[any][ portion][ of][ the][ site]asalleged by the plaintiff. In the circumstances, this[Court][ held][ as][ follows;][ By]merelooking into the sale deed or the lay out,it is not[possible][ to][ determine][ the]rights, unlessit is verified whether any portion of[the][ building]is constructedin Plot No.62. Therefore,it is essential tO'consider the request of the petitioner forappointment of Advocate Commissioner for the purpose[mentioned][ therein.]13. In Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others, 2010 (4)ALD198,it was held that an Advocate Commissioner can be appointedin aninjunctionsuit forlocal inspectionof thesuit site andto demarcate thesuitschedule property with the help of the Surveyor.

14. In Shaik Zareena Kasam v. Patan Sadab Khan, 2011 (4) ALD 231, this Courtat paragraphNo.10 held asunder: Whenever thereis a dispute regardingboundaries or physical features of the property or any allegation of encroachmentas narrated by one party and disputed by another party,[the][ facts][ have][ to][ be]physically verified, because the recitals of the documents may not reveal the truefacts and measuring of land on the spot by a Surveyor may become necessary.Itwas also held referring to Mallikarjuna Srinivasa "Gupta and[ Varala] RamachandraReddy (supra), that if there is some delay in filing the application to appoint anAdvocate Commissioner andif there are some laches on the part of one party,the Court may impose reasonable COSES

15. In Donadulu Lima Devi v. Girika Katamaiah @ Basaiah, 2013 (2) ALD 86 =2013 (1) ALT 548,it was held at para 12 that when thereis a dispute or issuewith regards to identity of a property in a litigationit is necessary to appoint aCommissioner for localizing the property which may be even by taking necessaryassistance from a qualified surveyor which will not amount to collecting evidencewhich is prohibited.

17. The Supreme Court in Gurunath Manohar Pavaskar & others vs. NageshSiddappa Navalgund and others, CDJ 2007 SO 1339, has[held][ that][ the][ learned]trial Judge may appoint an Advocate Commissioner for the purpose of takingmeasurement and demarcation of the disputed suit land.

18. The Supreme Court in Haryana Waqf Board supra, at paragraphs 4 to 8 heldas under: "Admittedly, in this case, an application[was][ filed][ under][ Order][ 26][ Rule]9 of the Code of Civil Procedure which was rejected by the trial Court but in viewofthefactthatit wasa caseof demarcationof the disputedland,it wasappropriatefor theCourttodirecttheinvestigationbyappointingaLocalCommissioner under Order 26 Rule 9 CPC."

20. In Sarala Jain v. Sangu Gangadhar''^ a learned Judge was dealingwith the civil revision petition filed by the defendant in O.S.No.322 of 2012 onthe file of the Court of Principal Junior Civil Judge, Nizamabad, seekingperpetual injunction and for demarcation of the suit schedule property. TheTrial Court appointed an Advocate Commissioner to fix the boundaries of thescheduleproperty.Intherevision,itwas,interalia,contendedthatappointment of Advocate Commissioner to make local investigation, amountsto collection of evidence and in support of the said contention reliance on Sagiwith the civil revision petition filed by the defendant in O.S.No.322 of 2012 onthe file of the Court of Principal Junior Civil Judge, Nizamabad, seekingperpetual injunction and for demarcation of the suit schedule property. TheTrial Court appointed an Advocate Commissioner to fix the boundaries of thescheduleproperty.Intherevision,itwas,interalia,contendedthatappointment of Advocate Commissioner to make local investigation, amountsto collection of evidence and in support of the said contention reliance on Sagi ' Vijaya Ramachandra Raju v. Koppisetti Satyanarayana (2009 SCC OnlineAP 907)etc., wasplaced. The learned Judge thoughinthefactsandcircumstances of the case, set aside the order of appointment of an AdvocateCommissioner for the reasons set out in the decision, while referring to theJudgment of the Hon’ble Supreme Court in Haryana Waqf Board and[ Others]v. Shanti Sarup and Others (reported in (2008) 8 SCC 671) at Para 20 heldthat "commissioner can be apfDointed for localization of property when there isdispute or issue with regard to identity of property in litigation."AP 907)etc., wasplaced. The learned Judge thoughinthefactsandcircumstances of the case, set aside the order of appointment of an AdvocateCommissioner for the reasons set out in the decision, while referring to theJudgment of the Hon’ble Supreme Court in Haryana Waqf Board and[ Others]v. Shanti Sarup and Others (reported in (2008) 8 SCC 671) at Para 20 heldthat "commissioner can be apfDointed for localization of property when there isdispute or issue with regard to identity of property in litigation."

21. InHaryana Waqf Board’s case(referredtosupra),theHon’bleInHaryana Waqf Board’s case(referredtosupra),theHon’bleSupreme Court was dealing with an appeal filed by the Punjab Wakf Board-plaintiff in a suit for declaration and injunction. The Second Appeal filed by theWaqf Board was dismissed by the High Court.The Hon’ble Supreme Courtwhile observing that in the case on hand, an application was filed under OrderXXVI, Rule 9 of C.P.C., which was rejected by the Trial Court but[ in] view ofplaintiff in a suit for declaration and injunction. The Second Appeal filed by theWaqf Board was dismissed by the High Court.The Hon’ble Supreme Courtwhile observing that in the case on hand, an application was filed under OrderXXVI, Rule 9 of C.P.C., which was rejected by the Trial Court but[ in] view of of demarcation of the disputed land,it wasthefact thatit wasa caseinvestigation by appointing a Localappropriate for the court to direct theCommissioner under Order XXVI, Rule 9 of C.P.C., allowed[the][ appeal.]

Conclusion

22. InGurunath Manohar Pavaskar & Others v. Nagesh Siddappa13Navalgund & OtherstheHon’ble Supreme Court was dealing with ana suit filed against them, inter alia, for theappeal filed by the defendants inreliefs including a decreefor permanent injunction. The suit was decreed inthe order offavour of therespondents / plaintiffs and the High Court affirmedthe Trial Court. The Hon’ble Supreme Court while holdingthat arevenuerecord is not adocument of title and merely raises a presumption in[regard][ to]_and circumstances, opined that the interest of justicepossession, in the factswould be sub-served, if the impugned judgments are[set][ aside][ and][ the][ matter]is remitted to thelearned Trial Judge .for consideration of the matterafresh,the respondents / plaintiffs for filing an applicationforWhile granting liberty toina inter alia for declaration of titleamendment of plaint, if they so desire, prayingCourt also observed that theasalso for damages, the Hon’ble Supremelearned Trial Court may also appoint a Commissioner[for][ the][ purpose][ of]measurement of the suit land.

learned Judge was dealing23.In K.Dayanand’s case referred to supra, aPetition filed against the order of the Trial Court[allowing]with a Civil Revisionrespondent / plaintiff under the provisions of Orderthe application filed by theof C.P.C. After referring to a catena ofXXVI, Rule1 and9 r/w Section 151

decisions,onthe issueof appointmentof AdvocateCommissionerthelearned Judge heldthat thereis no absolute bar onthe appointmentofCommissioner in a suit for injunction also as per the Law laid downin thevarious judgments to which a reference was made nor theprovisionsofSection 75 and Order XXVI, Rule 9, do impose such a prohibition. Observingthat the respondent-plaintiff filed an application for appointment of AdvocateCommissioner to note down the physical features of the schedule propertyonly and not for the purpose of finding out whoisinpossessionof theproperty, the learned Judge confirmed the order passed by the Trial Court anddismissed the revision petition.

24In Sri Krishna Kumar V Shah v. Sri T.Shanker Singh (C.R.P.No.2567of 2022), a learned Judge of the High Court Telangana, after referring toK.Dayanand’s case referred to supra and other decisions, inter alia, held thatappointment of Advocate Commissioner for noting down the physical featuresof the properties does not amount to gathering evidence[on][ behalf][ of][ either][ of]the parties.of 2022), a learned Judge of the High Court Telangana, after referring toK.Dayanand’s case referred to supra and other decisions, inter alia, held thatappointment of Advocate Commissioner for noting down the physical featuresof the properties does not amount to gathering evidence[on][ behalf][ of][ either][ of]the parties.

25. In the light of the above cited decisions, which lend support to thecaseof the respondent / plaintiff and the relief granted by the learned Trial Court tomeasure the property of both the parties as per the documentswiththeassistance of Mandal or any licensed surveyor, the same would not amount togathering of evidence. The opinion expressed by the learned Trial Court thatthe measurement of the properties of both the parties as per the documentswould help in better appreciation of evidence produced by the parties cannotof the respondent / plaintiff and the relief granted by the learned Trial Court tomeasure the property of both the parties as per the documentswiththeassistance of Mandal or any licensed surveyor, the same would not amount togathering of evidence. The opinion expressed by the learned Trial Court thatthe measurement of the properties of both the parties as per the documentswould help in better appreciation of evidence produced by the parties cannot

be viewed as contrary to Law or perverse, warranting interference by thisCourt in exercise of power under Article 227 of the[Constitution][ of][ India.][ The]

point is answered accordingly.

26. In the aforementioned view of the matter, the Revision[Petition][ fails][ and]the same is accordingly dismissed.No costs.

As a sequel,all the pending miscellaneous applications,if any, shallstand closed.

Sd/- A. VIJAYA BABUASSISTANT REGISTRAR

//TRUE COPY//SECTION^OFFICER

To.

1. The Principal Civil Judge, (Junior Division) Kakinada.

2. One CC to Sri P Vivek, Advocate [OPUC]

3. One CC to Sri A K Kishore Reddy, Advocate [OPUC]

4. Two CD Copies

RAM

HIGH COURT

DATED :25/04/2025

ORDERCRP.No.2165 of 2024

DISMISSING THE CRPWITHOUT COSTS