The judgment established that there is no bar for appointment of Commissioner even in a simple suit for injunction if circumstances warrant such appointment, and the duty of the Court is to find out the person in possession of the suit schedule property.

JUDGMENT

1. Heard Sri Ch.B.R.P.Sekhar, learned counsel for the petitioners, and Sri Narasimha Rao Gudiseva, learned counsel for the respondent, apart from perusing the material available on record.

2. Defendants in O.S.No.161 of 2017, on the file of the Court of the II Additional Junior Civil Judge-cum-II Additional Judicial Magistrate of First Class, Nuzvid, are the petitioners in the present Revision, filed under Article 227 of the Constitution of India.

3. Challenge in the present application is to the order, dtd. 19/5/2023, passed by the said Court, dismissing I.A.No.222 of 2023, filed by the defendants-petitioners herein under Order 26 Rule 9 of the Code of Civil Procedure, 1908, for appointment of Advocate Commissioner to note down the physical features of the suit schedule property, including underground pipeline, passing through the suit schedule property, and also openings by way of valves to give water to the suit schedule property and also to note the entire pipeline arrangement and existing bunds and to file report.

4. Respondent herein instituted the said suit against the petitioners herein for permanent injunction and the plaint schedule property is an extent of Ac.0.65 cents of dry land in R.S.No.327/2B of Chekkapalli Village, Musunuru Mandal, Krishna District.

5. In the said suit, the defendants-petitioners herein filed the present I.A.No.222 of 2023. The plaintiffrespondent resisted the application by way of filing counter. The learned Judge, by way of the impugned order, dismissed the application.

6. According to the learned counsel for the defendantspetitioners, the order impugned is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 26 Rule 9 of the Code of Civil Procedure; that the appointment of Commissioner would assist the Court to arrive at a just and correct conclusion; that the reasons assigned by the learned Judge in the impugned order are neither sustainable nor tenable in the eye of law; that in view of the denial of existence of pipeline and outlets in the suit schedule property by the plaintiff, recording of physical features of the suit schedule property by Advocate Commissioner would assist the Court for arriving at the conclusions. In support of his submissions and conclusions, learned counsel places reliance on the judgment of the composite High Court in C.R.P.No.360 of 2014, dtd. 11/11/2014, and the judgment of this Court in the case of Vasupalli Danayya vs. Pinnmaraju Srinivas, 2023(3) L.S. 119 (A.P.).

7. On the contrary, Sri Narasimha Rao Gudiseva, learned counsel for the plaintiff-respondent, contends that there is no error nor there exists any infirmity in the impugned order and, in the absence of the same, no interference of this Court is warranted; that in view of the settled proposition of law that in a suit for mere injunction, the application for appointment of Commissioner for collection of evidence is not maintainable; that as there is no dispute as to the identity of property, the present application is liable to be rejected. To bolster his submissions and contentions, learned counsel for the respondent takes the support of the order of this Court in C.R.P.No.1705 of 2022, dtd. 5/12/2022.

8. In the above background, now the issues that emerge for consideration of this Court are:

"1. Whether the order impugned, in the facts and circumstances of the case, is sustainable and tenable? and

2. Whether the questioned order warrants any interference of this Court under Article 227 of the Constitution of India?"

9. It is a settled and well established principle of law that there is absolutely no bar/prohibition for appointment of Commissioner even in a simple suit for injunction if the circumstances warrant such appointment. The suit in the case on hand is also a suit for permanent injunction.

10. As per the pleadings on record, the case of the defendants-petitioners is that an extent of Ac.0.35 cents, out of suit property on Western side