IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.895 of 2009 Between: A.Narasimha Raju ..... PETITIONER AND Nandipati Parvathidevi .....RESPONDENT The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH CIVIL REVISION PETITION No.895 of 2009 O R D E R: Heard. The petitioner is the defendant in the suit filed by the respondent herein in O.S.2865/2004 on the file of the III Addl.Junior Civil Judge, Visakhapatnam. The said suit was filed for permanent injunction restraining the petitioner herein from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property bearing plot No.188. A written statement was filed denying all the averments made in the plaint. During pendency of the suit, defendant filed I.A.647/2008 under Or.26 Rule-9 CPC for appointment of an Advocate-Commissioner to locate the situation of plot No.188 i.e. suit schedule property with reference to VUDA records and as per the VUDA lay out vide proceedings in BLP.19/92. In support of the petition, the petitioner filed an affidavit before the Court below stating that the plaintiff is nothing to do with the suit schedule property and the plaintiff lost her rights in respect of the suit schedule property long back. In fact, the petitioner herein who is the President of Srinivasa Cooperative House Building Society laid a lay out and the said lay out is in Sy.No.7part of Resapuvanipalem, Visakhapatnam in an extent of Ac.14.10 cents, and to that effect, the Urban Development Authority of Visakhapatnam granted BLP.19/92, out of which the said society sold the plots and the plaintiff purchased the plot No.188. It is stated that subsequently Andhra Bank Cooperative House Building Society filed a suit in (O.S.302/92) O.S.67/96 on the file of the II Addl.District Judge, Visakhapatnam against Srinivasa Cooperative House Building Society and 26 others for declaration of title over a site approximately of an extent of 5000 sq.yards as belongs to them. The said suit was decreed on 25.03.1999 in favour of the Andhra Bank House Building Society. The plaintiff was the 10th defendant in the said suit. It is stated that plot No.188 is part and parcel of 5000 sq.yards which is the suit schedule property of O.S.67/96 which was said to have been decreed on 25.03.1999. Thereafter, the Government issued G.O.Ms.No.195 granting exemption in favour of Srinivasa House Building Society which was subsequently withdrawn, and thus, the plaintiff who purchased the plot No.188 has lost her rights. It is stated that the plaintiff allowed some other persons to occupy plot No.188 as she has lost rights over the said plot, and is now conveniently making hectic efforts to encroach upon the plot No.189 which belongs to one Mr.Ch.Appalaraju Therefore, it is essential to locate the situation of plot No.188 with reference to VUDA records and as per the aforesaid lay out proceedings. It is state that the entire case depends upon the situation of plot No.188 which will be useful for the Court to render equitable justice. The said application was dismissed by the Court below by the impugned order dated 23.12.2004, observing that the defendant is not claiming either plot No.188 or plot No.189 and he is not defending the case of Appalaraju, and the defendant has no interest in the schedule property according to his own version, and therefore, there are no grounds to consider the said application. The learned counsel Mr.M.S.Prasad, appearing for the petitioner submits that the plaintiff suppressed the fact of her suffering earlier decree and filed the suit seeking injunction without having any title or possession in respect of Plot No.188. The only question that arises for consideration is whether the petitioner herein is entitled for appointment of an Advocate- Commissioner under Or.26 Rule-9 CPC to locate the plot No.188 i.e. the suit schedule property with reference to VUDA records. Under Or.26 Rule-9 CPC in any suit, if the Court deems as a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such local investigation and report thereon to the Court. Or.26 Rule-10 CPC deals with the procedure to be followed by the Commissioner. Or.26 Rule-10A CPC deals with the commission for scientific investigation. Or.26 Rule-10B CPC deals with the commission for performance of a ministerial act. Or.26 Rule-10C CPC deals with commission for the sale of movable property. Or.26 Rule-11 CPC deals with commission of examination or adjusts accounts. Or.26 Rule-12 CPC deals with the necessary instructions to be given by the Court to the Commissioner. Or.26 Rules-13 and 14 CPC deals with the commission to make partition. Or.26 Rule-15 CPC deals with the expenses of the commission to be paid into the Court. Or.26 Rule-16 CPC deals with the powers of the commissioners. I am of the opinion that appointment of Commissioner before passing the decree differs from that an appointment of Commissioner after passing the decree. If a preliminary decree is passed either in a suit for partition or mortgage, after adducing evidence by the respective parties, the Advocate-Commissioner is entitled to survey, divide and sale. But in the instant case, the plaintiff is yet to establish her entitlement to get the injunction. In the plaint, it was only averred that the defendant made an attempt on 25.09.2004 to interfere with the peaceful possession and enjoyment of the plaintiff in respect of the suit schedule property. The defendant is neither claiming the suit schedule property nor claiming any right in the adjacent plot. Therefore, this is a simple suit for injunction. However, it is always open for the defendant to adduce evidence stating that the plaintiff has no right over the plaint schedule property. When the defendant has no right, title or interest either over the suit schedule property or having any right in the adjacent plot, filing of such application seeking appointment of Advocate-Commissioner is frivolous and without any jurisdiction. The Civil Revision Petition is accordingly dismissed with costs throughout. ________________ V.ESWARAIAH,J Dated: 10.06.2011 Dsr