( 1 ) THIS revision is directed against the order dated 21-8-1998 of the learned Junior Civil Judge, Sompeta passed in I. A. No. 274 of 1998 in O. S. No. 40 of 1998. The said I. A. was filed under Order 26, Rule 9 of CPC for appointment of Commissioner which was allowed by the learned junior Civil Judge.

( 2 ) THE respondent (plaintiff) filed the said suit for injunction. The learned Counsel for the petitioners (defendants) challenges the order of the appointment of Commissioner of the trial Judge on three grounds.

( 3 ) FIRSTLY, it is contended that the Commissioner was appointed at a very preliminary stage of the suit before the trial started and that as held in a decision of this Court in the case of P. Raghu Kumar v. P. Moses, 1985 (1) APLJ (SN) 15, that under Order 26, Rule 9 of CPC a Commissioner can be appointed only where the Court deems local investigation to be requisite or proper for the purpose of elucidation of matters in dispute.

( 4 ) THE next contention of the learned Counsel for the petitioner is that the suit itself is merely for injunction though there is an averment in the plaint that the defendants has encroached upon the plaintiffs land and that the Commissioner was sought to be appointed for ascertaining the encroachment.

( 5 ) IT is then contended that considering the back-ground of the case that there was an earlier suit O. S. No. 26 of 1986 filed by the plaintiffs between the same parties in which the plaintiffs title to the plaint schedule land in that case was negatived by holding that it formed part of Survey No. 110/1 whereas the plaint property is covered by Survey No. 110 (2), the appointment of Commissioner at this stage is not warranted.

( 6 ) THE learned Counsel for the respondent on the other hand contends that as the suit relates to a part of the survey number, it is necessary to fix the location of that part for deciding the Court on the issues raised in the suit and for enabling the Court to give any relief to the plaintiff.

( 7 ) A perusal of the order under revision would show that the learned Junior Judge has not referred to the pleadings of the parties and has not indicated what arc the questions of dispute that call for decision by the Court. He seems to have been mainly influenced by the fact that according to the plaintiff there has been a lapse of five years after judgment in the previous suit O. S. No. 26 of 1986 and that as per the petitioner (plaintiff) some portion of the land was occupied by the defendants presumably during this period. The learned Junior Judge observed as follows:". . . . it is for that reason even for the future reliefs sought to be claimed by the plaintiff s i. e. , declaration, the extent of encroachment is a necessary for valuation of the suit under Section 24 (d) of A. P. C. F. Act. "the learned Judge further observed as follows:"since, there was a change from 1993 (from the date of judgment to till this application is filed), it is a fit case where the Commissioner can be appointed for localisation and to note the encroachment of the plaint land by the defendants. "

( 8 ) THESE observations of the learned Judge would show that the order for appointment of Commissioner has been made on extraneous considerations without focussing the attention as to what are the questions of dispute which arise in the suit and whether for deciding such disputed questions, appointment of Commissioner was necessary. It is rather amazing that the learned Judge thought it necessary to appoint a Commissioner in respect or reliefs which are likely to be sought by the plaintiff presumably after amendment of the plaint. If that was so, there was no need for appointment of the Commissioner immediately and the learned Judge could have waited till the plaint was finally amended and then ascertained what are the questions in dispute that arise for consideration in this case.

( 9 ) THE learned Judge seems to have relied on the decision of this Court in the case of Pandiri