1. The 1st plaintiff, since 2nd plaintiff died of the suit in O.S.No.75 of 2009 on the file of Principal Junior Civil Judge, Tuni, is the revision petitioner and revision respondent is the sole defendant.

2. The suit filed was for permanent injunction in relation to plaint plan ABCD lane by removing the constructions said to have been made by the defendant. The claim of the plaintiff is that he purchased the property from the mother of the defendant by name Kantamma. The record shows the defendant earlier filed O.S.No.219 of 1993 for permanent injunction against his brother and mother and the matter was settled before the Lok Adalat. Plaintiff alleges that latter the suit lane was occupied by constructing compound wall obstructing the easementary right of ingress and egress, thereby sought for appointment of an Advocate Commissioner for measurement and demarcation of the lane by measuring the property of the plaintiff and the defendant respectively.

3. The defendant opposed the petition saying the very suit seeking permanent injunction without declaratory relief for alleged removal of construction from plaint plan ABCD lane won’t lie and Exs.A1 and A2 no way relate to plaintiff’s right over suit property and there are no documents or any local body approved plans filed to support the claim and there are no grounds to appoint Advocate Commissioner therefrom.

4. The lower Court by the impugned order dated 05.11.2015, dismissed the petition with the observation that the suit is of the year 2009 and is at the stage of arguments. At this stage filing of the petition for appointment of Advocate Commissioner by the plaintiff no way sustains. There is existence of ABCD lane between house of plaintiff and defendant but for the dispute is regarding the width and alleged encroachment of part of the lane by the defendant and the evidence on record is sufficient to adjudicate the lis, thereby there is no requirement of appointment of Advocate Commissioner for any localization and it is nothing but collecting evidence.

5. Learned counsel for the revision petitioner/plaintiff submitted that the impugned order is baseless and unsustainable and should have been considered for appointment of Advocate Commissioner for localization and demarcation of the lane including on its width. The counsel for the defendant revision respondent supported the order of the lower Court.

6. Appointment of Commissioner in terms of part III i.e. matter “Incidental proceedings” of CPC is provided by section 75 of the Code.

“75. Power of court to issue commissions:– Subject to such conditions and limitations as may be prescribed, the Court may issue a commission–(a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition; (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act. With this, Section 75, it would be appropriate now to refer Order XXVI Rule 9 of CPC, which provides appointment of “Commissioner for local investigation.”

7. The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. There is some confusion as to in what circumstances an advocate-commissioner is to be appointed in a civil suit. To answer this question, we have to understand the expression of “elucidating any matter in dispute” in Order 26, Rule 9 of CPC. There are several expressions in this regard. Some are under the impression that no advocate-commissioner is to be appointed in suit for injunction. For example, the claim for injunction made by the plaintiff is based on the plea that there is only one way