THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3622 of 2010 Dated:20.08.2010 Between: Pampana Pushpavathi, And another. ….Petitioners And Sanaboyina Maniratnam. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3622 of 2010 ORDER: The petitioners are defendants in O.S.No.145 of 2008. The suit is filed by the sole respondent herein for perpetual injunction in respect of the land admeasuring Ac.0.10 cents (out of Ac.0.23 cents) comprised in survey No.153/06 of S.Illindalaparru Village of Penumantra Mandal in West Godavari District. The petitioners herein are opposing the suit, inter alia, on the ground that the plaintiff has no right to the suit property and that she is not an encroacher. At the time of trial, the petitioners took out I.A.No.1606 of 2009 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), for appointment of a survey knowing Commissioner to measure the property and note the physical features. By order dated 02.06.2010 the Court below dismissed the application, aggrieved by which, the present Civil Revision Petition is filed. Counsel for the petitioners relies on Penta Urmila v Karukola Kumaraswamy[1], Jayalakshmi Constructions, Hyderabad v Nawab Behboob Ali Khan[2], Mallikarjuna Srinivasa Gupta v K.Sheshirekha[3] and Varala Ramachandra Reddy v Mekala Yadi Reddy[4], and submits that appointment of Advocate Commissioner or survey knowing Commissioner for recording features of the land is not prohibited under the CPC. There cannot be any dispute that order XXVI Rule 9 of CPC confers discretion on the Court to appoint Advocate Commissioner. This provision does not specifically prohibit appointment of a Commissioner to make local investigation. Further, Section 94 of the CPC provides supplementary powers of the civil Court. Section 75 of CPC deals with incidental proceedings. As per this, subject to such conditions and limitations as may be prescribed, the civil Court may issue commission to examine any person, to make a local investigation, to examine or adjust accounts, make a partition, to hold a scientific investigation and to conduct sale of the property. The power to issue commission to examine any person is subject to the conditions and limitations. Therefore, Order XXVI Rule 9 of CPC cannot be construed as conferring any absolute power on the civil Court to appoint a survey knowing Commissioner to identify the land or survey the land besides noting the physical features. In a suit for injunction burden is always on the plaintiff to prove his/her case. Therefore, if an Advocate Commissioner is appointed at the instance of defendants, it not only amounts to relieving the plaintiff from such burden but casting the burden on the defendants. This is certainly a limitation of the civil Court’s power while exercising the jurisdiction under Order XXVI Rule 9 read with Section 75 of CPC. In that view of the matter, this Court does not find any error in the order passed by the Court below. The Civil Revision Petition is, therefore, dismissed. __________________ (V.V.S.RAO, J) 20.08.2010 vs [1] 2005 (2) ALD 130 [2] 2006 (2) ALD 363 [3] 2006 (3) ALD 362 [4] 2010 (4) ALD 198