THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P. No. 3637 of 2010 Dated. 08–10-2010 Between: Maddineni Sambasiva Rao …Petitioner Vs. Maddineni Lakshmi Narayana and another. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P.No. 3637 of 2010 ORAL ORDER: The revision petitioner is the plaintiff in O.S.No.508 of 2009 filed for permanent injunction in respect of the suit schedule property. Therein he filed I.A.No.1802 of 2009 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 seeking appointment of an advocate commissioner for “noting down the physical features of the suit schedule property and measure its extents”. In the affidavit accompanying I.A.No. 1802 of 2010 he pleaded that he is the owner of the suit schedule property; himself and his brother partitioned the property orally about eight years back; in the oral partition the suit schedule property fell to his share; he has been enjoying the property since the time of partition by raising crops like paddy, pillipesera, cotton etc., that the 1st respondent has no property near the schedule property; due to political differences between him and the respondents, the respondents are threatening that they would interfere with the petitioner’s peaceful possession and enjoyment; if an advocate commissioner is appointed, he will note down the physical features of the suit property as to whether the land ploughed, made ready to raise crops and thus much of the oral evidence will be reduced. The respondents resisted this application by filing a counter, before the Court below. Apart from denying the merits of the petitioner’s claim, the respondents urged that the application is not maintainable as it is filed for the purpose of gathering evidence through the Advocate Commissioner and in abuse of process of Order XXVI Rule 9 CPC. The Court below rejected the application by recording the following reason: It is an admitted fact that the petitioner herein filed the main suit for permanent injunction. The respondents filed their written statement in the main suit and the main suit is coming up for settlement of terms under Section 89 of the Code of Civil Procedure. At this stage the petitioner herein came with this application by saying that if the commissioner is noted down the physical features of the schedule property, much evidence will be reduced and that he is ready to bear the expenses of the commissioner. The said statement of petitioner itself clinchingly establishes that by way of appointment of advocate commissioner he wants to collect the evidence. It is an established law that no commissioner should be appointed to gather the evidence. Therefore, I feel that the appointment of advocate commissioner clearly for the sake of gathering of evidence not permissible under aw. Hence, I feel that there are no merits in filing this application, as such the petitioner is not entitled for appointment of advocate commissioner. Accordingly the point is answered. This Court discerns no error in the exercise of discretion by the Court below warranting, interference under Article 227 of the Constitution. The revision petition is accordingly dismissed at the stage of admission. No costs. __________________________ JUSTICE GODA RAGHURAM Dated: 08-10-2010 Pvks/*