IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.R.P.NO.3116 OF 2010 Date:17.03.2011 Between:- G.Madan Mohan ..Petitioner/Plaintiff And Narender Singh and another .. Respondents/defendants ORDER:- This Civil Revision Petition is directed against the order dated 06.05.2010 in I.A.No.649 of 2009 in I.A.No.186 of 2009 in O.S.No.1810 of 2009 on the file of XIX Junior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, the petition filed under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) to appoint an Advocate Commissioner to inspect and note down the physical features of the petition schedule property including the existence of service connection, telephone connection and stocks of China Bazar and to submit report was dismissed on the ground that an Advocate Commissioner cannot be appointed to collect the evidence. 2. Learned counsel for the petitioner/plaintiff contended that the respondents denied the jural relationship of landlord and tenant and since several years, the petitioner has been carrying on business in China Bazar and therefore, appointment of Advocate Commissioner is necessary. 3. Learned counsel for the respondents opposed the same stating that an advocate commissioner cannot be appointed to collect evidence. 4. The petitioner/plaintiff filed the suit against the respondent for perpetual injunction. There cannot be any dispute that when there is dispute with regard to the physical features of the property, a Commissioner can be appointed for noting down the physical features. In this case, there is no dispute about the physical features of the schedule property. The respondents denied the jural relationship of landlord and tenant. If really the petitioner is in possession of the property, he can as well produce the evidence with regard to the payment of electricity charges, payment of amount towards the telephone connection and running of China Bazar shop. Noting down those aspects is nothing but collecting evidence. The object of local investigation is not so much to collect evidence, which can be taken in Court but to obtain evidence, which from its very peculiar nature can be had only on the spot. The case on hand is not peculiar in nature. 5. Learned counsel for the petitioner relied upon a decision reported in Arredla Ram Reddy vs. Arredla Alivelamma[1], wherein it is held thus: “It is true that appointment of Commissioners under Order 26 C.P.C., is not confined to any particular circumstances. 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 of 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.” He also placed reliance on a decision reported in Mukund Lal vs. Sharada Bai[2], wherein it is held thus: “It is the case of respondent Nos. 1 to 3 that the petitioner is making construction in violation of the sanctioned plan, and that respondent No. 2, which is duty bound to check the illegal construction, is not taking action. The petitioner denied that she is making any illegal construction. Whether the petitioner is making illegal construction or not, the fact remains, the Court below has allowed the application filed by respondent Nos. 1 to 3 praying to appoint an Advocate Commissioner to note down the physical features of the suit schedule property. By allowing the application filed by respondent Nos. 1 to 3 to appoint an Advocate Commissioner, to note down the physical features of the suit schedule property, it cannot be said that the Advocate Commissioner has been appointed to collect evidence for the plaintiff. It is not as if the Advocate Commissioner would be noting down the physical features behind the back of the petitioner. He would execute the warrant in the presence of both the parties and submit his report reflecting the fact realities. This apart, it is not as if the report to be submitted by the Advocate Commissioner would be final, for it is always open for the parties to object the same by filing their objections, if any, thereto.” He also relied on a decision reported in D.Sambasiva Rao Chowdary vs. R.Kamashastry[3], wherein it is held thus: “It is to be noted that the main suit is filed for a declaration that the suit site is part and parcel of the internal road of the Plaintiffs connecting the Plaintiffs College and Gunj Road. The Plaintiffs have already examined four witnesses and Exs.A-1 to A-10 documents have been marked to substantiate their case. At that stage, the plaintiffs filed this application seeking appointment of Advocate-Commissioner to survey and demarcate the suit site and the Court below having expressed that in order to resolve the controversy once for all and in order to come to a just decision in the matter it is necessary to appoint Advocate-Commissioner allowed the application. It is true that a Commissioner for local investigation cannot be appointed in exercise of the jurisdiction under Order 26, Rule 9 of the Code, if the same enables the parties to the suit to collect evidence. But, it is always open to the Court to direct local investigation if in the facts and circumstances of the particular case the Court comes to a conclusion that local investigation is necessary for the purpose of obtaining evidence which from its peculiar nature can only be had on the spot.” The above decisions are not applicable to the present case as, in the said cases, there is a controversy with regard to the property in dispute therein. In this case, there is no such controversy with regard to the physical features of the property. 6. Considering these aspects, the trial Court rightly dismissed the petition and there are no grounds to interfere with the impugned order. 7. The Civil Revision Petition is dismissed. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU 17th March, 2011 AMD THE HON'BLE SRI JUSTICE K.C.BHANU C.R.P.NO.3116 OF 2010 Date:17.03.2011 AMD [1] 2005(1) ALT 28=2004(5) ALD 388 [2] 2006(1) ALT 221 [3] 2004(4) ALD 858