HON'BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.181 of 2011 Date : 10.06.2011 Between : Mareedu Sivanaga Malliswari. …..Petitioner And Kommuru Venkateswarlu. …..Respondent HON'BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.181 of 2011 ORDER : This Civil Revision Petition is filed under Article 227 of the Constitution of India, aggrieved by the order, dated 26.11.2010, passed in I.A.No.1180 of 2010 in O.S.No.682 of 2010, on the file of the Principal Junior Civil Judge, Nellore. 2. The petitioner herein is plaintiff in the suit. The aforesaid suit is filed for injunction simplicitor with regard to plaint schedule property consisting of land to an extent of 19 Ankanams. It is the case of the plaintiff that she is the absolute owner of the suit schedule property shown in between points A,B,C,D,E,F,G,H,I,J,K,L,M,N in the rough plan annexed to the plaint, and that the same was purchased under the registered sale deed, dated 15.01.1979, vide document No.94/79 from one Biyyapu Anjaneyulu, and since then, plaintiff and her husband have been in possession of the said property. It is stated that out of the said property, the plaintiff kept certain portion shown in between points C1, D, E, F, F1, B1 and C2 as vacant for observing vastu and in a portion of the property, there is old house, which is in dilapidated condition. The other property consists of a three- floor building with three portions each in ground and first floors and one portion in the second floor. It is her case that though the plaint schedule property is part and parcel of the property covered by registered sale deed dated 15.01.1979, there is interference by the respondent/ defendant with her possession. 3. In the aforesaid suit, the respondent/defendant has filed his written statement claiming that he has purchased the land admeasuring about 13 ½ ankanams by registered settlement deed, dated 24.02.2010, from its earlier owners M/s.Vasudev Raghavendra and Vankatesh Vasudev. It is his case that a part of the said property was shown as plaint schedule property and the suit is filed with false averments. 4. When the suit is pending trial, the respondent/defendant has filed I.A.No.1180 of 2010 for appointment of Advocate Commissioner to note down the topographical features of both the properties and their common passages etc., as shown in the rough plan attached to the written statement. The said application is contested by filing a detailed counter affidavit by the plaintiff herein. The Court below, by impugned order, has ordered appointment of Commissioner to note down the physical features of the plaint schedule property and also to measure the sites of both the parties with the assistance of Mandal Surveyor. 5. In this civil revision petition, it is contended by the learned counsel for petitioner that there is absolutely no valid reason recorded by the trial Court for allowing the application filed by the respondent/defendant for appointment of Advocate Commissioner. It is submitted by the learned counsel that no Advocate Commissioner can be appointed to collect evidence and unless and until valid reasons exist for appointing Commission, no order can be passed appointing Advocate Commissioner, merely because an application is filed under Order 26 Rule 9 of Civil Procedure Code. On the other hand, it is submitted by Sri S.Laxminarayana Reddy, learned counsel appearing for respondent/defendant that there is no illegality in the order passed by the Court below. It is submitted by the learned counsel that the petitioner is already in possession of the land purchased by her, but by wrongly showing the plaint schedule property, she obtained interim injunction orders, and under the guise of the said order, petitioner is not allowing to use the property owned by the respondent. It is submitted that having regard to the topographical features of the land in question, it is necessary to appoint Advocate Commissioner. In support of his argument, the learned counsel has relied on two judgments rendered by the learned Single Judges of this Court, in Yeera Ayyanna Vs. H.Marthamma[1] and in Varala Ramachandra Reddy Vs. Mekala Yadi Reddy[2]. 6. To consider the rival contentions advanced by the learned counsel for the parties, I deem it appropriate to refer to the provision under Rule 9 of Order 26. Under said Rule, if a local investigation is felt to be necessary or proper for the purpose of elucidating any matter in dispute, Commission can be appointed. In view of the said language envisaged under Rule 9 of Order 26, in each and every case, whenever an application is filed, it is obligatory on the part of the Court to take note of the issues involved in the suit and must record reasons whether an Advocate Commission is necessary to make local investigation for the purpose of resolving the issues that arise for consideration in the suit. Merely because an application is filed for appointment of Advocate Commissioner, in each and every case, Commission cannot simply be appointed without recording valid reasons. A perusal of the impugned order passed by the trial Court shows that except stating that having regard to the version of both sides it is felt to appoint the Advocate Commissioner, no other independent valid reason is recorded for allowing the application filed by the respondent. Though the learned counsel for respondent has relied on the judgments referred above, the question as to whether the Commission is to be appointed or not, is a matter, which needs to be considered with reference to facts of each case, taking into account the issues involved in the suit and the purpose for which the Commission is sought for, etc. It is no doubt that even in a suit for injunction simplicitor, Advocate Commissioner can be appointed, as held by this Court in the judgments relied on by the learned counsel, but in a given case, whether the Advocate Commission is necessary to resolve the dispute, is a matter, which is to be considered with reference to the facts of that case. As much as no valid reason is recorded for allowing the application filed by the respondent, and having regard to the averments made in the counter affidavit filed by the petitioner herein before the Court below objecting the relief sought for, this Court is of the view that it is a fit case to set aside the impugned order and to remit the matter to the trial Court for fresh consideration. 7. Accordingly, the order dated 26.11.2010, passed in I.A.No.1180 of 2010 in O.S.No.682 of 2010, is set aside and the matter is remitted to the learned Principal Junior Civil Judge, Nellore, with a direction to decide the said application afresh by considering the pleas of both parties having regard to the provision under Rule 9 of Order 26 CPC. 8. Revision is allowed to the extent indicated above. No costs. ______________________ R. SUBHASH REDDY, J 10th June 2011 ajr [1] 2009 (1) ALD 548 [2] 2010 (4) ALD 198