The discretionary power of appointing a commissioner under Order 26 Rule 9 CPC and the need for physical verification in cases of disputes regarding boundaries or physical features of the property.

JUDGMENT:

1. Heard Ms. S. Parineeta, learned counsel for the petitioner.

2. The plaintiff in the suit has filed this petition under Article 227 of the Constitution of India. The respondents are the defendants in the suit.

3. The petitioner filed O.S.No.153 of 2021 in the Court of Principal Junior Civil Judge, Punganur for permanent injunction for the plaint schedule property.

4. The 2nd defendant (2nd respondent) filed affidavit submitting inter alia that the plaint schedule property originally belonged to his ancestors and the vendor of the plaintiff who without giving full extents and correct boundaries executed documents in favour of the plaintiff. The defendants are the coowners and there are houses, grave yard, tombs of their ancestors but suppressing the same the suit was filed to change the physical features by getting injunction order. He filed I.A.No.378 of 2023 and prayed for appointment of an Advocate Commissioner to note down the physical features as per the boundaries of survey numbers with the assistance of Mandal Surveyor.

5. The plaintiff filed the objection/counter opposing the appointment of the Advocate Commissioner.

6. The learned Principal Junior Civil Judge by order dated 10.05.2023 allowed I.A.No.378 of 2023 and appointed the Advocate Commissioner to note down the physical features by identifying the houses, tombs and other existing features with the assistance of Mandal Surveyor and such other points raised at the time of execution of the warrant and file report along with the sketch and photographs.

7. The plaintiff has filed the present petition challenging the order dated 10.05.2023.

8. Learned counsel for the petitioner submitted that at the initial stage of the suit, at the instance of the defendantrespondent No.2, the Commission could not be issued. The learned trial court committed error in allowing the application. She placed reliance in Arvind Kumar Agarwal v. Legend Estates (P) Ltd., Ranga Reddy District, Hyderabad, 2015(2) ALD 206.

9. I have considered the submissions advanced by the learned counsel for the petitioner and perused the material available on record.

10. The short point raised for consideration is whether the Commission could be issued under Order 26 Rule 9 CPC, at the initial stage of the suit?

11. Order 26 Rule 9 of CPC reads as under:

“9. COMMISSIONS TO MAKE LOCAL INVESTIGATIONS.

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”

12. A bare reading of Order 26 Rule 9 CPC makes it evident that there is no restriction or bar imposed with respect to the stage of issuance of Commission.

13. In any suit in which the court deems a local investigation to be requisite or proper inter alia, for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. So the Commission can be issued if in the view of the court, it is so necessary for elucidating any matter in dispute.

14. The learned civil judge in its order, considered that the contention of the defendant that the plaintiff suppressed the existence of grave yard, houses, tombs of the ancestors of the defendant in the suit schedule property. There were rival contentions; one that the suit schedule property were not divided and the other that the plaintiff purchased the suit schedule property with a specific extents and within a specific boundaries. There were also rival contention; one denying the existence of tombs in th