HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 1637 OF 2011 DATED 14TH NOVEMBER, 2011 BETWEEN Konda Sri Krishna Varma …….Petitioner and Chintalapati Rama Krishnam Raju and ors …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 1637 OF 2011 ORDER: This Civil Revision Petition is ﬁled seeking to assail the docket order dated 7.4.2011 whereby the Court below allowed the application in I.A.No. 1934 of 2009 in O.S.No. 274 of 2009 filed by the first respondent/ﬁrst defendant under Order XXVI Rule 9 CPC for appointment of an Advocate Commissioner. The petitioner is one of the plaintiﬀs, who ﬁled the aforesaid suit seeking permanent injunction restraining respondents/defendants from digging and forming ﬁsh tanks in their ﬁelds more fully described in Plaint B-Schedule obstructing natural course etc. The Court below granted temporary injunction in their favour by order dated 6.5.2009. While so, the ﬁrst respondent/ﬁrst defendant ﬁled the impugned application seeking appointment of an Advocate Commissioner to note down the physical features of the schedule lands and for report. The petitioner/plaintiﬀ opposed the same contending that no useful purpose will be served unless a Commissioner technically well versed with the subject matter is appointed to inspect and decide whether the proposals of the ﬁrst respondent/defendant for forming ﬁsh tank in their lands are in accordance with the guide lines issued there to. The Court below allowed the impugned application, appointing an Advocate Commissioner. It is submitted by the learned Counsel for the revision petitioner that there is no necessity to appoint an Advocate Commissioner to note down the physical features of the palint schedule land. He contended that the impugned application is ﬁled only to collect the evidence, which is impermissible under law. He asserted that the appointment of the Advocate Commissioner in a suit for injunction is impermissible more particularly when the parties are not entitled to seek appointment of Commissioner to collect evidence in order to build up their defence basing on the material submitted by the Advocate Commissioner so appointed. In support of his contentions, he placed reliance on the judgment of this Court in Arredla Ram Reddy Vs. Arredla Alivelamma {2004 (5) ALD 388}. On the other hand, the learned Counsel for the ﬁrst respondent contended that appointment of Advocate Commissioner to note down the physical features of the schedule land can be ﬁled in a suit for injunction. While placing reliance on the judgment of this Court in Salla Eswaramma Vs. C.Subba Reddy {2009(2) ALT 59} in support of his contention, the learned Counsel supported the order under revision and submitted that there are no valid grounds to interfere with the same in this revision petition. Perused the case file. A learned single Judge of this Court in Arredla Ram Reddy’s case referred to above, while dealing with the issue relating to appointment of an Advocate Commissioner in a suit for permanent injunction restraining the defendants therein to interfere with the peaceful possession of the plaintiﬀ therein, held that appointment of Commissioner under Order XXVI CPC is not conﬁned to any particular circumstances and that depending on the necessity in a suit Commissioners can be appointed even to note down the physical features. In the said case, it was further observed that the appointment of Commissioners, however, would depend on the nature of relief claimed in the suit and that when the physical features of the suit schedule property are of hardly of any relevance in a suit for permanent injunction, the necessity to appoint a Commissioner does not arise in as much as the resultant report is prone to be used as a material to support the plea of possession etc., and therefore such a course of action is impermissible. In the case on hand, the suit is ﬁled to restrain the ﬁrst respondent/defendant along with other defendants and their concerned from digging and forming ﬁsh tanks in the plaint schedule lands. The ﬁrst respondent/ﬁrst defendant sought appointment of an Advocate Commissioner only to note down the physical features of the plaint schedule land to ascertain as to whether their proposals for forming ﬁsh tanks are contrary to the guidelines issued thereunder. As such, the plea that the report to be so ﬁled by the Commissioner would be misused as a material to support the plea of possession etc does not arise. Order XXVI Rule 9 CPC would show no distinction of the suit in which the Advocate Commissioner can be appointed or rejected. In the said provision it is contemplated that if the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, an Advocate Commissioner can be appointed. In the case of Salla Eswaramma ( supra) this Court observed that Advocate Commissioner can also be appointed in a suit for permanent injunction for noting down the physical features by making local inspection and note down the physical features as the report ﬁled by the Advocate Commissioner so appointed pursuant to the application ﬁled by the respondent in the suit ﬁled by the petitioners is not exhaustive. The learned Counsel for the petitioners submitted that the permission for digging ﬁsh tanks was already rejected by the concerned revenue authorities and as such the same cannot be gone into by the Civil Court in a suit for injunction. If that be so, it is very well open for the petitioners to put forth the said contention when the suit reaches the stage of arguments. Needless to observe that the report of the Advocate Commissioner is subject to consideration of the objections, if any, to be ﬁled by the aggrieved party. Under these circumstances, I do not see any illegality or irregularity in the order under revision. The Civil Revision Petition fails and is accordingly dismissed. There shall be no order as to cots. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 14TH NOVEMBER, 2011. Msnro