THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4712 of 2009 Date:28th January, 2011 Between: Juttu Nagamani ..... Petitioner/plaintiff AND 1. J.Chennakeshavulu & Ors. .....Respondents/defendants *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4712 2009 ORDER: This Civil Revision Petition is directed against the order dated 18.08.2009 passed in I.A.No.286 of 2009 in O.S.No.47 of 2007 on the file of the Senior Civil Judge, Nagarkurnool, Mahabubnagar District, whereby and whereunder the learned Senior Civil Judge dismissed the application filed by the petitioner/plaintiff under Order 26, Rule 9 r/w. Sec.151 CPC, seeking appointment of Advocate-Commissioner to note down the physical features of the suit schedule property. 2. Background facts in a nutshell leading to filing of this revision by the petitioner/plaintiff in O.S.No.47 of 2007 are:- The petitioner is the plaintiff and the respondents are the defendants in O.S.No.47 of 2007. The plaintiff filed the suit for injunction in respect of the suit schedule property. The defendants entered appearance and filed written statement resisting the relief sought for by the plaintiff. The trial Court settled the issues and the parties led evidence in support of their respective contentions. The petitioner/plaintiff contended that there is a basement in the suit schedule property and whereas, the respondents/defendants disputed the same. Therefore, the petitioner/plaintiff filed I.A.No.286 of 2009 under Order 26, Rule 9 r/w.Sec.151 CPC seeking appointment of advocate-commissioner to note down the physical features of the suit schedule property. It is stated in the affidavit filed in support of the petition that physical features existing over the suit schedule property are essential for proper adjudication of the issue involved in the suit and therefore, appointment of advocate-commissioner has been sought for to note down the physical features. The respondents/defendants filed counter resisting the application. The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, dismissed the application, by order dated 18.08.2009. Hence, this revision. 3. Notice before admission came to be ordered on 15.10.2009. Despite service of notice on the respondents/defendants, they did not choose to enter appearance either in person or through a counsel. 4. Heard learned counsel appearing for the petitioner/plaintiff and perused the order impugned in the revision. 5. Learned counsel appearing for the petitioner/plaintiff submits that the lower Court misread the prayer sought for in the petition filed under Order 26, Rule 9 r/w.Sec.151 CPC and thereby erred in dismissing the application. The learned counsel took me to the prayer sought for in I.A.No.286 of 2009, which reads as hereunder: “For the reasons stated in the accompanying affidavit, it is prayed that the Hon’ble Court may be pleased to appoint an advocate commissioner to note down the physical features over the petition schedule property as shown in the schedule in the interest of justice.” 6. All through, the contention of the petitioner/plaintiff is that there is a basement in the suit schedule property. The said factual aspect has been denied by the respondents/defendants. Appointment of an advocate-commissioner to note down the physical features of the suit schedule property does not amount to collection of evidence. Therefore, the reason assigned by the trial Court for dismissal o the application filed by the petitioner/plaintiff seeking appointment of advocate-commissioner cannot be sustained. 7. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 18.08.2009 passed in I.A.No.286 of 2009 in O.S.No.47 of 2007 on the file of the Senior Civil Judge, Nagarkurnool, Mahabubnagar District, and consequently, I.A.No.286 of 2009 is allowed and the trial Court is directed to appoint an advocate- commissioner to note down the physical features of the suit schedule property. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:28th January, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4712 of 2009 Date:28th January, 2011