IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SECOND DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.1197 OF 2009 Between : Sri Lakshmi Venkateswara Educational Society Rep.by its Correspondent Sri Ramasani Thippareddy ... PETITIONER A N D Tatavarthi Sirisha and another …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO. 1197 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the docket order, dated 04.03.2009, in I.A.No.153 of 2009 in O.S.No.20 of 2006 on the file of Senior Civil Judge, Kavali, Nellore District, whereunder and whereby, the application filed under Order XXVI Rule 9 read with Section 94 of Code of Civil Procedure, 1908 to appoint an advocate commissioner to note down the physical features and to note the value of the structures of the schedule property and to file his report, was allowed. 2. Heard both sides. 3. O.S.No.20 of 2009 on the file Senior Civil Judge, Kavali, is filed by the petitioners herein for perpetual injunction against the respondents, their men, their assignees and their legal representatives. Pending the suit, the respondents herein filed two applications, viz., I.A.No.152 of 2009 under Order XXXIX Rules 1 and 2 C.P.C. for ad-interim injunction and the present I.A.No.153 of 2009 for appointment of Advocate commissioner to note down the physical features as they are claiming the suit schedule property with specific extent and boundaries. 4. No plea has been taken in the trial Court in the affidavit filed in support of the petition for appointment of Advocate Commissioner on the ground that the petitioners were apprehending that the respondents may forcibly change or alter the physical features of the schedule property. Even without the respondents entered appearance raising the objection with regard to the physical features of the property, the present petition appears to have been filed to collect the evidence. Because in case there is a dispute with regard to boundaries, noting down of physical features is essential. 5. Learned counsel for the petitioners placed reliance on a decision reported in Gangavarapu Hanumantha Rao V. Battigiri Ramulu and others[1], wherein this Court held thus” “Filing of applications for appointment of Commissioners 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 Commissioners, at the initial stages, is prone to be treated as step to gather evidence. Therefore, the Court discourage the filing of applications under Order 26 Rule 9 C.P.C., in the suits for injunction, at the initial stages”. From the above decision, it is clear that the appointment of Advocate Commissioner at initial stage is prone to be treated as a step to gather evidence, even without waiting for the plea that may be raised by the respondents. There is no necessity for the respondents to seek for appointment of Advocate Commissioner to note down the physical features at the stage when the application is filed. The question of appointment of a commissioner arises only when the petitioners dispute about the physical features of the property. That stage has not come in this case. 6. The learned counsel for the respondents placed strong reliance on a decision reported in Chalapati Veeranna and others V. Chalapati Venkatachalam[2], wherein this Court held thus: “While we feel that it is mandatory on a Court to issue a notice after the appointment of a commissioner so that each party may have a chance of presenting his or her case, no such obligation exists before the appointment of a commissioner under Order 26 Rule 9”. There is no dispute about the law laid down that when the local inspection is requisite for the purpose of deciding the suit, a commissioner can be appointed even without notice to the respondents. In view of the fact that the plea of the petitioners herein is not known, because they have not entered appearance before the Court, the question of appointment of commissioner does not arise. Such remedy is available when the petitioners take an objection disputing the physical features of the property. 7. He also relied on a decision reported in Parepally Satyanarayana V. Vutukuri Meeneder Goud[3], wherein this Court held thus: “A commissioner cannot be appointed to find out as to who is in possession of the property. But he can be appointed to make local investigation to ascertain the facts or other material which are found in the property and to make a report in regard to that matter to the Court. The order of the lower Court was directing the Commissioner to make local inspection of the suit premises, to break open the lock provided that the petitioner is in occupation of the premises and to note down the physical features”. Even the above decision also will not come to the rescue of the respondents to make the local inspection of the suit premises. In this case, the commissioner cannot be appointed to know or ascertain who is in possession of the property, and the question of appointment of commissioner to note down the physical features arises only the when respondents disputed about the physical features of the property. Therefore, the trial Court exceeded its jurisdiction in appointing the Advocate Commissioner. 8. Accordingly, the Civil Revision Petition is allowed, setting aside the impugned order dated 04.03.2009 in I.A.No.153 of 2009 in O.S.No.20 of 2009 on the file Senior Civil Judge, Kavali, Nellore District. There shall be no order as to costs. _______________ K.C.BHANU. J NOVEMBER 02, 2010. YVL [1] 2008(1)ALD 466 [2] 1958(II) Andhra Weekly Reporters 296 [3] 2010-LAP-279