( 1 ) BOTH these revision petitions can be disposed of together since identical questions of law and fact are involved and as the parties are same.

( 2 ) TWO applications were filed seeking appointment of Commissioner in two suits pending adjudication between the parties inter se in the same Court. By means of an identical order although passed separately in two separate petitions, the court below appointed a Commissioner to note down the physical features of the suit schedule mentioned properties with a direction to draw a rough sketch and to take photographs, if necessary.

( 3 ) THE orders appointing Commissioner in both the applications are now being sought" to be assailed solely on the premise that such an appointment would tantamount to fishing in evidence. The suits in between the parties appear to have been filed seeking the relief of perpetual injunction. In the concomitant petitions filed, the parties sought for temporary injunctions. When those applications had been coming up for enquiry and adjudication, separate petitions were filed seeking appointment of a Commissioner.

( 4 ) THE learned Counsel appearing for the revision petitioners represents that the appointment of a Commissioner sought for is obviously to fish out evidence which cannot be permitted. To buttress the said contention, the learned Counsel seeks to place reliance upon a judgment of this Court in Bongu Ramulu and another v. Gudur narender Reddy, 1998 (3) ALD 657. That was obviously a case where the appointment was sought for to ascertain as to who were in possession of the suit property as on the date of presentation of the suit and also to note down the physical features and material evidence available at the suit land for the just and proper disposal of the petition filed for temporary injunction. Therefore, this Court held that such an application was not maintainable inasmuch as the Court had to decide itself the question of possession basing only on oral and documentary evidence adduced before it.

( 5 ) MALLA Bhaskara Rao and another v. Konchada Ananda Rao, 1999 (5) ALD 113, was a case where an application seeking amendment of the plaint was filed and was pending consideration. In the meanwhile, the appointment of a commissioner was sought in respect of a relief which was the subject-matter of the proposed amendment. Under those circumstances, it was held that the appointment of a Commissioner was premature.

( 6 ) BOTH the above judgments can be distinguished having regard to the facts in the instant case.

( 7 ) ON the other hand, the learned counsel appearing for the respondents seeks to contend that a Commissioner can be appointed to note down the existence of physical features and there is every distinction between the appointment of a commissioner under Order 26, Rule 9 and order 39, Rule 7 of the Code. He seeks to place reliance upon a short noted judgment of this Court in O. D. Harry and others v. G. Krishna and others, 1983 (1) ALT (NRC) 29. It was held thus :"the Court has got ample power for appointing a Commissioner to make local investigation and to note the peculiar physical features of the suit property which the party seeks to rely upon at trial in support of his case for seeking a perpetual injunction. In this case the lower Court has confined the scope of enquiry by the commissioner to note down the existence of the physical features of the suit property and to submit a report. This is amply supported by a combined reading of Order XXVI Rule 9 and Order XXXIX Rule 7 CPC. "

( 8 ) RELIANCE has also been sought to be placed upon the judgment of the Orissa high Court in Subal Kumar Dey v. Purna chandra Giri and others, AIR 1989 Ori. 214. That was a case where a suit for partition was filed. Accompanying the suit, an application seeking temporary injunction was also filed. Initially the Court granted an ad interim order of injunction. The first defendant resisted the suit and also the order of ad interim injunction. In addition theret

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