THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.6178 OF 2010 O R D E R Heard both the counsel. 2. Aggrieved by the order and decree dated 2.6.2010 passed by the court of Senior Civil Judge, Karimnagar in I.A.No.1004/2009 in O.S.No.66/2007, in refusing to appoint an Advocate Commissioner under Order 26, Rule 9 of C.P.C. for noting down the physical features of the petition schedule property and for taking photographs thereof, the defendant no.2 in the suit filed the present revision. 3. The suit schedule property consists of partly RCC tiled roof house bearing municipal door no.1-5-81, 1-5-82 and 1-5- 83, situate at Kaman Road locality of Karimnagar town measuring 473 sq. yards. 4. The learned counsel appearing for the petitioner- defendant no.2 contended that the respondents 1 and 2, who are the plaintiffs, filed the suit against the 3rd respondent herein - Municipal Corporation, Karimnagar, for perpetual injunction restraining them from interfering with their peaceful possession and enjoyment of the suit schedule property and also filed I.A.No.526/2007, seeking temporary injunction from interfering with the peaceful possession and from obstructing the construction of the plaintiffs. By order dated 21.4.2007, the court below ordered to maintain status quo with regard to demotion of property. He contended that under the guise of interim order, the respondents 1 and 2, have made constructions in violation of the sanctioned plan and as the constructed area is five floors and also a pent house and as it is made in violation of the building norms and sanctioned plan, and the house of the petitioner is adjacent, it affects his right to life, since in case of any fire accident, there is no access to the building. He further submitted that the 3rd respondent – Municipal Corporation also filed written statement stating that the plaintiffs have undertaken construction in violation of the sanctioned plan. Therefore, as the plaintiffs have made constructions in violation of the sanctioned and by obtaining the interim orders of the court and as the said construction is affecting the lives of the petitioner, the petitioner sought for appointment of Advocate Commissioner. He contended that the court below without noticing these factors on record and only on the ground that an Advocate Commissioner cannot be appointed even before the commencement of trial, in a suit for permanent injunction, dismissed the I.A. He contended that even in a suit for permanent injunction, Advocate Commissioner can be appointed for noting down the physical features of the suit schedule property and take photographs and that the Advocate Commissioner can be appointed even before commencement of trial and that it does not amount to collection of evidence. In support of his contention, he relied on the judgments reported in VEERANNA v. VENKATACHALAM[1], N.SAVITRAMMA vs. B.CHANGA REDDY[2], T.RAVINDRA KUMAR ALIAS RAVINDRA REDDY vs. P.CHENGA REDDY[3], G.SAROJINI vs. K.RAMAMURTHY[4], MUKUND LAL vs. SHARADA BAI[5], JAYALAKSHMI CONSTRUCTIONS, HYDERABAD vs. NAWAB MEHBOOB ALI KHAN[6] and J.P.SUBBAMMA v. N.RAVI KUMAR REDDY[7]. 5. On the other hand, the learned counsel appearing for the respondents 1 and 2 – plaintiffs, supporting the impugned order sought for dismissal of the revision. 6. The plaintiffs filed the suit for permanent injunction against the Municipal Corporation, Karimnagar and the obtained the interim order of status quo on 21.4.2007 with regard to demolition. The Municipal Corporation also filed written statement. The petitioner herein is the third party and got impleaded in the suit as defendant no.2, claiming that he is the adjacent land owner and also filed petition seeking discharge of interim order and the same is pending adjudication. The trial in the suit has not commenced. 7. As per the judgments relied on by the counsel for the petitioner there is no dispute that an Advocate Commissioner can be appointed for noting down the physical features of the property, in a suit for permanent injunction. But, it cannot be denied that appointment of an Advocate Commissioner depends upon facts and circumstances of each case and also depending on the necessity and where evidence on that particular fact cannot be obtained by any other means, then resort can be had to the appointment of an Advocate Commissioner. In the decision reported in N.Savitramma’s case, (2 supra) a learned single Judge of this court held that Commissioner could be appointed before the issues are framed or the evidence is lead, whenever such physical features on the land or other property are required to be noted, it becomes necessary for the court to appoint an Advocate Commissioner to note these facts. From this judgment also it is clear that the stress is on the requirement or rather necessity to note the physical features. Therefore, the court has to satisfy with regard to necessity of appointment of an Advocate Commissioner. 8. In the present, the suit is filed for permanent injunction restraining the Municipal Corporation from interfering with the peaceful possession and enjoyment of the suit schedule property and the Municipal Corporation filed written statement and the court below granted status quo with regard to demolition and petitioner herein got impleaded and his petition for vacating the interim order is pending. 9. It is the suit for permanent injunction and the questions that would fall for consideration are whether the plaintiffs were in possession of the suit schedule property, as on the date of filing of the suit and whether they are entitled for permanent injunction restraining the respondents from interfering with their peaceful possession and enjoyment over the suit schedule property. The grievance of the petitioner is that the constructions are made in violation of the sanctioned plan and after obtaining the interim orders of status. In the counter filed to the I.A., the plaintiffs have denied these averments and also contended that the petitioner herein is also running petrol bunk in violation of the norms of municipal laws and without taking safety measurements and without leaving the set back of 6 meters road side. Therefore, both the parties made allegations against one another. These averments are required to be proved by adducing evidence. The said job cannot be entrusted to an Advocate Commissioner and the trial has not yet commenced. In these circumstances, I am of the view that there is no necessity at this stage, to appoint an Advocate Commissioner. 10. A learned single Judge of this court in ARREDIA RAM REDDY v. ARREDIA ALIVELAMMA[8] held as under: “6. It is true that appointment of Commissioner under Order 26 C.P.C., is not confined to any particular circumstance. Depending on the necessity in a suit, Commissioners can be appointed, even to note down the physical features. This, however would depend on the nature of relief claimed in the suit. When the physical features of the suit schedule property are hardly of any relevance, in a suit for permanent injunction, the necessity to appoint a Commissioner does not arise. The resultant report is prone to be used as a material, to support the plea of possession etc. Such a course of action is impermissible in law.” 11. In another judgment reported in G.HANUMANTHA RAO @ ANJANEYULU v. BATTIGIRI RAMULU[9] a learned single Judge of this court in similar facts and circumstances, in a suit for perpetual injunction and where temporary injunction was in force and the trial court appointed Advocate Commissioner at the threshold, held as under: “5. Filing of applications for appointment of Commissioner under Order 26 Rule 9 C.P.C., in the suits for perpetual injunction, cannot be treated as a matter of routine. The contentions of the parties as to the possession over the suit schedule property, need to be appreciated, with reference to the evidence, that may be adduced, be it at the interlocutory or the final stage. The appointment of Commissioner, at the initial states, is prone to be treated as step to gather evidence. Therefore, the Courts discourage the filing of applications under Order 26 Rule 9 C.P.C. in the suits for injunction, at the initial stages.” 12. In KODURI SHESHAREDDY v. VENKATRAM REDDY[10], a learned single Judge of this court held as under: “10. . .Even in a such cases, particularly, in suits for perpetual injunction, appointment of Commissioner to note down the physical features cannot precede the recording of evidence. The parties have to adduce their evidence in support of their respective contentions as to possession. The Court would be justified to appoint 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.” 13. In view of the above facts and circumstances, I do not find any merit in the revision and the same is dismissed. No costs. AVS ------------------------------------------ --- 16 --06--2011 [1] AIR 1959 AP 170 [2] 1988 (1) ALT 353 [3] 1991(3) ALT 129 [4] 1997(5) ALT 477 [5] 2006(1) ALT 221 [6] 2006(2) ALT 132 [7] 2001(2) An.W.R. 319 [8] 2005(1) ALT 28 [9] 2008(1) ALD 466 [10] 2006(1) ALD 372