THE HON’BLE SRI JUSTICE GODA RAGHURAM CIVIL REVISION PETITION No.910 of 2007 ORDER: The fourth defendant in O.S.No.311 of 2001, the fourth respondent in I.A.No.64 of 2006 therein seeks a revision, under Article 227 of the Constitution of India, of the order of the III Additional Senior Civil Judge, Visakhapatnam, who by the order dated 19.01.2007 impugned herein allowed an application of respondents 1 and 2 herein under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short “CPC”) for appointment of an Advocate Commissioner for investigation and report whether the plaint schedule land falls within the boundaries mentioned in sale deed Nos.1109 dated 16.05.1965 and 3590 dated 15.10.1967, and if so it is within the extent of Acs.7.60 cents which is in the plaintiffs’ possession and enjoyment. Respondents 1 and 2 herein filed the suit against the revision petitioner and respondents 3 to 5 for declaration of title to an extent of Acs.0.71 cents in S.No.2/2 of Endada Village mentioned in the boundaries in the schedule to the sale deeds and for permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit schedule property. The defendants including the revision petitioner filed written statements disputing the title of the plaintiffs as well as the location of the suit schedule property. Issues were also framed and the suit was coming up for trial. At that stage, the plaintiffs filed the application in view of the dispute by the defendants as to whether the suit schedule property is located within the boundaries enumerated in the sale deeds on the basis of which title is claimed or otherwise. Earlier a Commissioner was appointed for making a spot inspection of the plaint schedule property and to report the number and age of some old mango and other fruit bearing trees claimed to be standing on the plaint schedule property. I.A.No.64 of 2006 was filed thereafter for the purpose already mentioned. The Court allowed the application concluding that ascertainment of the location of the plaint schedule property is essential for determination of the matter in lis and that it had the power under Order XXVI Rule 9 CPC to order a local investigation for the purpose of elucidating matters in dispute. Sri O.Manohar Reddy, learned counsel for the revision petitioner strenuously contended that under the provisions of Order XXVI Rule 9 CPC a Commissioner cannot be appointed to gather evidence and that this principle is too well settled. This contention, while conceptually valid, is inapplicable to the present facts. The principle that an Advocate Commissioner must not be appointed to gather evidence is evolved to ensure the neutrality of the Court process, and the integrity of the adversarial process. In the context of the provisions of the Evidence Act, the burden of establishing a fact asserted is on the party asserting a fact and that burden is discharged by martialling evidence oral or documentary in support of such assertion. It is also well settled that burdens do shift according to the facts and circumstances and the dynamic strategies of the litigation in civil litigation. However, the core function of the judicial branch is to identify the relevant facts that fall for determination and to apply the relevant legal principles, to arrive at a legitimate conclusion. It is in this context that the provisions of Order XXVI Rule 9 CPC enable a Court when satisfied that a local investigation is requisite or proper for the purpose of elucidating any matter in dispute, to issue a commission to such person as it thinks fit directing him to make such investigation and to report to the Court. The power may be exercised by the Court suo motu or on an application by a party to the lis. The question in all such cases is whether there is any basis for the exercise of discretion, namely, whether a commission has been appointed for elucidating any matter in dispute or for gathering evidence on behalf of one party. In the factual matrix of the case, the location of the plaint schedule property is in dispute and vigorously so. The fact that the advocate commissioner was appointed at the instance of the plaintiff does not in any way invalidate the exercise of power under Order XXVI Rule 9 C.P.C. On the aforesaid analysis, this Court finds no error in the application of law or perversity in the exercise of discretion, warranting revisional interference under Article 227 of the Constitution of India. There are no merits. The revision petition is dismissed. No costs. JUSTICE GODA RAGHURAM Dated: 01.07.2010 va