ORDER :

G. Shyam Prasad, J.

1. This civil revision petition arises out of the order dated 7.3.2019 passed in IA No. 68 of 2018 in OS No. 27 of 2018 on the file of the Court of the Principal Junior Civil Judge, Kurnool.

2. Heard the learned Counsel for petitioners and the learned Counsel for respondents.

3. The revision petitioners are the defendants in OS No. 27 of 2018 on the file of the Court of the Principal Junior Civil Judge, Kurnool, filed by the respondents/plaintiffs for permanent injunction against the petitioners/defendants from ever interfering with the peaceful possession and enjoyment of the plaint schedule property. The respondents have also filed IA No. 68 of 2018 under Order XXVI Rule 9 and Section 151 of Code of Civil Procedure, 1908, for appointment of an Advocate Commissioner to measure the suit schedule land and the same was allowed. Aggrieved by the said order, petitioners have preferred this revision.

4. The learned Counsel for the petitioners submits that in a suit for injunction, a Commissioner cannot be appointed after adducing evidence by both the parties in this case and the respondents/plaintiffs are trying to gather the evidence during trial.

5. The learned Counsel relied upon a judgment in the case of Aravind Kumar Agarwal v. Legend Estates (P) Limited, 2015 (2) ALD 206 : 2015 (2) ALT 484, wherein it is held in Para No. 3 that:

"......3. It is only after both the parties adducing their respective evidence, if any ambiguity prevails with reference to the identity of the properties, that the Court on its own or on the application of either parties, may appoint an Advocate Commissioner. In my opinion, in a case of this nature (Injunction suit) an application for appointment of an Advocate Commissioner at the threshold itself cannot be entertained as the same will amount to gathering evidence..."

In fact, in the instant case, the identity of suit schedule property is in dispute.

In another case on the file of this Court, in Aravind Kumar Agarwal v. Legend Estates (P) Limited (supra), wherein it is held in Para No. 3 that-

3. Ordinarily, in a suit for injunction, an Advocate Commissioner cannot be appointed to gather evidence. Only in cases where there is a serious dispute regarding identity of the property or boundaries thereof, an Advocate Commissioner can be appointed even in the suits filed for injunction.

This Court has also relied on another judgment in the cases of Haryana Walk Board v. Shanti Sarup and others, (2008) 8 SCC 671 : 2008 AIR SCW 2500 and Varala Ramachandra Reddy v. Mekala Yadi Reddy and others, 2010 (4) ALD 198.

6. He also placed reliance in Bandi Samuel and another v. Medida Nageswara Rao, 2017 (1) ALD 582 : 2017 (1) ALT 493, wherein, it is held as follows:

As per Section 75 and Order XXVI Rule 9 of CPC, '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 XXVI 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 to his house and that he is being prevented by the defendant from using said way, any amount of evidence in this regard may not help the Court to render a correct finding on this aspect, as evidence in this regard would be available on the spot at the ground/field. So, a situation such as this would definitely fall within the expression of "elucidating any matter in dispute" to avoid adducing of much oral evidence by consuming time of Court and parties and ultimately with no possibility of practical approach for accurate determination of the lis. No doubt, before appointing an Advocate Commissioner, Court shall examine pleadings, relief claimed and real controversy b