IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No. 4564 OF 2010 Between: P.Srinvias and others … Petitioners And Gangula Vasanta. … Respondent This Court made the following: HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.4564 of 2010 ORDER:- This revision is directed against the order in I.A.No.870 of 2009 in O.S.No.105 of 2003 on the file of the Junior Civil Judge’s Court, Ramannapet, dated 01.05.2010. 2. The defendants filed the petition for appointment of a Commissioner alleging that after they acquired ownership and possession on purchase, they were using through out the ways shown in red colour and blue colour in the sketch map annexed to the written statement and the said ways were left by their vendors as public roads which are in existence and use since then without any other alternative way for the defendants to reach their lands. The existence of the roads and identity of the land covered by the roads were sought by the defendants to be brought on record through the report of an advocate Commissioner to be appointed for noting such physical features. 3. The plaintiff in her counter while referring to the purchase of Ac.14-00 guntas by defendant Nos.1 and 3 denied any creation of a way shown in red colour or blue colour in the sketch map annexed to the written statement. The plaintiff claimed that had such ways been in existence, they would have been shown as the boundaries for the properties purchased and that if a direction is given to the commissioner to measure the lands purchased by defendant Nos.1 and 3 under registered sale deeds bearing Nos.177 and 178 of 1981, dated 09.02.1981, the facts will be proved. If no such direction is given, the appointment of an advocate commissioner would have the effect of collecting evidence. 4. On such pleadings, the trial court rendered the impugned order opining that as seen from the averments of both the parties, there was no objection to get a commissioner appointed, but the purposes for which the commissioner is sought to be appointed was opined to be unconnected with the issues settled in the suit for adjudication. The trial court opined that the request of the either side cannot be conceded as it would amount to collection of evidence and while leaving it open to the parties to produce their evidence on these aspects, the trial court refused the request, more so, as the request was highly belated being at the stage of arguments. 5. The defendants are before this court being aggrieved by the said order and contended that the appointment of a Commissioner would only help in correct and comprehensive adjudication of the questions in issue making clear all the questions in controversy. The existence and use of the roads alone is sought to be verified through the Commissioner and when both the parties consent for the same, the best evidence, which could have been placed before the court, could not have been prevented by the dismissal of the application. 6. Sri Adesh Varma, learned counsel for the revision petitioner is heard and though the plaintiff/respondent is served with a notice of the revision before admission, none entered appearance on her behalf. 7. The point for consideration is whether the appointment of an advocate commissioner is called for in the interest of justice? 8. The suit for a perpetual injunction concerning the suit schedule property of course did not specify any public road or way to be the boundary of any side of the suit schedule property. But the very approach to the civil court was with reference to the interference by the defendants on the ground of a portion of the land claimed by the plaintiff to be part and parcel of their land in an extent of Acs.14-00 guntas in S.Nos. 776, 777 and 783. The defendants in their written statement claimed that the plaintiff was not in possession of the said land and had positively claimed even then in para 4 of the written statement, that the suit property was not agricultural land, but was covered by the roads shown in the rough sketch map annexed to the written statement. The defendants also specifically contended the suit land to be public way in use since more than 30 years and alleged that the way shown in red colour in the sketch map was created by the vendor of the defendants in the year 1981, while another way shown in blue colour was also created and left to the public road. The said pleas, which are unambiguous and clear, as they are, irrespective of the truth or otherwise of the contentions, show that it is not for the first time that the defendants were raising pleas stated in the affidavit in support of this application about the existence and use of the public roads or ways. The question in controversy between the parties to the suit thus appears to primarily revolve round the truth or otherwise of the contentions about the existence and use of such public roads or ways. Probably, conscious of that the plaintiff requested in her counter only for a direction to the Commissioner in the manner pleaded by her, so as to assist the Court in a comprehensive adjudication of the issues in the suit. Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, the judicial discretion of the Court in the matter of directing a local investigation has to be exercised when it is requisite for the purpose of elucidating any matter in dispute. The failure to do so, on the admitted facts and circumstances, solely on the ground of the request coming up at a belated stage, is not conducive to the interests of justice. The delay indulged in by the defendants can result in directing the defendants to bear the cost of the Advocate Commissioner irrespective of the result of the suit, but not in the rejection of the request itself. The request for appointment of the Advocate commissioner cannot, therefore, be considered to be purely and merely for collection of evidence and the placement of the physical features of the property in dispute before the Court by an independent Commissioner will be of immense help in coming to an appropriate conclusion in the suit. 9. Therefore, the order in I.A.No.870 of 2009 in O.S.No.105 of 2003 of the Junior Civil Judge, Ramannapet, dated 01.05.2010, is set aside and the said I.A.No.870 of 2009 shall stand allowed without costs and an Advocate Commissioner shall be appointed by the trial court for the purposes stated in the petition and also for the purpose specified in the counter of the plaintiff i.e., for measurement of the lands purchased by defendant Nos.1 and 3 in S.Nos.776, 777 and 783 under registered sale deeds bearing document Nos.177/81 and 178/81, dated 09.02.1981. The fee payable to the Advocate commissioner shall be reasonably fixed by the trial court and the expenses of the Commissioner should be borne by the defendants irrespective of the result of the suit. The Advocate Commissioner shall give notice to both the parties before executing the warrant of Commission and answer work memos, if any, filed before him. Both the parties are hereby directed to appear before the Commissioner. 10. The Civil Revision Petition is allowed, accordingly, without costs. ______________________ G.BHAVANI PRASAD, J 19th November 2010 lmv