THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION NO.3889 OF 2009 Dated 23rd July, 2010 Between: K.Chandra Sekhar …Petitioner And M.Pedda Thippanna and others …Respondents Counsel for the petitioner : Sri B.Narasimha Sharma Counsel for the respondents: Sri K.Somakonda Reddy The Court made the following ORDER: This Civil Revision Petition is filed against order dated 21.07.2009 in I.A.No.1208 of 2009 in O.S.No.587 of 2008 on the file of the Principal Junior Civil Judge, Kurnool. The petitioner is the plaintiff in the abovementioned suit filed for permanent injunction. The respondents herein, who are the defendants in the suit, filed I.A.No.1208 of 2008 for appointment of an Advocate Commissioner. The said application having been allowed, the plaintiff filed the present Civil Revision Petition. I have heard Sri B.Narasimha Sharma, learned counsel for the petitioner, and Sri K.Somakonda Reddy, learned counsel for the respondents. In support of the application filed for appointment of Advocate Commissioner, respondent No.23 filed an affidavit, wherein it is stated as under- “The case of the respondent/plaintiff is that he is in possession of plaint schedule land and cultivating it. It is our case that the respondent is not in possession of any portion of the plaint schedule land. It is our case that Survey Nos.14 and 222, which belong to us, were sold to Agraseni people, where Maruti Big City Project is coming up. The said land is annexed to other survey numbers in the total extent of Ac.117.00 developed by laying plots and laying internal roads. Similarly survey No.221 is sold away by the respondent and the purchaser from the respondent in turn sold it to Agraseni people and that is also annexed in the other land of Maruthi Big City. So, the physical features of the suit schedule land will prove that the respondent is not in possession of any portion of the land. This can be proved by a visit by a Commissioner. It will avoid unnecessary oral evidence and will be useful for proper appreciation of the case by the Hon’ble Court. Any amount of oral evidence will not be of much use. The commissioner’s report will be useful for both parties.” The Court below, while rejecting the objections raised by the petitioner, allowed the application purporting to follow the two judgments of this Court cited on behalf of the respondents. Order XXVI Rule 9 CPC empowers the Court, in which the suit is pending, to issue a Commission, where it feels that a local inspection is necessary or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits etc. The suit filed by the petitioner pertains to permanent injunction. It is the case of the respondents/defendants that Survey Nos. 14 and 222 belonging to them were sold to third parties where Maruthi Big City Project is coming up and that the said land is annexed to another survey number, which was developed for laying plots and internal road. It is also the case of the respondents that Survey No.221 is sold away by the plaintiff and the purchaser, in turn, sold it to the same persons, who have purchased Survey Numbers 14 and 222. In the light of the said pleadings, the respondents have sought for appointment of an Advocate Commissioner for noting down the physical features in order to prove that the respondents are not in possession of any portion of the land. The respondents, as could be seen from the affidavit reproduced above, have further stated that appointment of an Advocate Commissioner will avoid unnecessary oral evidence and will be useful for proper appreciation of the case by the Court. It is fairly well settled that an Advocate Commissioner cannot be appointed for the purpose of using his report as evidence to support the case of either of the parties. As the suit filed by the petitioner herein was for an injunction simplicitor, he may succeed or fail depending upon the evidence he may adduce in support of his claim of his possession. It is not permissible for the defendants to seek appointment of an Advocate Commissioner with an intention to use his report as a piece of evidence as Order XXVI Rule 9 CPC does not permit appointment of Commissioner for such a purpose. A perusal of the order under revision shows that the Court below has failed to consider the application in proper perspective in the light of Order XXVI Rule 9 CPC and has mechanically relied on the judgments in Maddu Taha and others vs. Uttarvilli Nagamani[1] and Saraswathy vs. Viswanathan[2], which have no application, whatsoever, to the facts of the present case. For the abovementioned reasons, the impugned order cannot be sustained and the same is accordingly set aside. The Civil Revision Petition is accordingly allowed. As a sequel to disposal of main petition, CRPMP No.5353 of 2009 filed by the petitioner for interim relief is disposed of as infructuous. C.V.NAGARJUNA REDDY, J Dated 23rd July, 2010 vrn [1] 1995 (1) ALT 750 [2] 2002 (2) MLJ 133