The court emphasized the provisions of Order XXVI Rule 9 of CPC, highlighting the power of the court to appoint a Commissioner for local inspection if the report of the Commissioner is of assistance to the Court in resolving the controversy between the parties.

JUDGMENT/ORDER

1. Heard Sri. Ravindra Reddy, the learned counsel for the petitioners and Sri. Harshavardhan R. Malipatil, the learned counsel for the respondent.

2. In terms of the impugend order passed by the First Appellate Court, where the appeal filed under Sec. 96 of Code of Civil Procedure (for short 'CPC') is pending, an application under Order XXVI Rule 9 of CPC at I.A.No.2 in R.A.No.17/2011 before the Senior Civil Judge, Sedam is allowed.

3. In terms of the said order on I.A.No.2 the First Appellate Court has allowed the application for appointment of Deputy Director of Land Records to measure the suit property bearing Sy.No.212 and to submit a report as to whether there is any government land between the land of the plaintiff and the riverbed and also directed the DDLR to give a report on the extent of government land if at all there is such land between the land of the plaintiff and the riverbed.

4. Sri. Ravindra Reddy, the learned counsel for the petitioners would submit that before filing the suit at the instance of the respondents an application was filed before the ADLR. The ADLR has already measured the property and submitted a report and that report was made the part of the record before the Trial Court. An application was also filed by the defendants before the Trial Court for appointment of surveyor to measure the suit land. Same was rejected by the Trial Court after contest. That order was not called in question and that order has attained finality. Thus, the First Appellate Court could not have allowed the application for appointment of a commissioner to measure the suit land. Under these circumstances, he would submit that the writ petition is to be allowed and the impugned order is to be set-aside.

5. Sri. Harshavardhan R. Malipatil, the learned counsel for the respondents would defend the order and submit that the First Appellate Court has looked into the material placed on record and based on it, the first appelalte court has taken a view that the report of the surveyor would be of assistance to the Court to adjudicate the controversy between the parties. He would also submit that the Order XXVI Rule 9 of CPC does not contemplate any particular stage to consider the application. The Court has the power to consider an application for appointment of surveyor for local inspection at any stage and no infirmity can be traced in the order passed by the First Appellate Court.

6. This Court has considered the rival contentions raised at the Bar.

7. The Order XXVI Rule 9 of CPC is an enabling provision. The Court has got the power to appoint the Commissioner for local inspection if the Court finds that the report of the Commissioner is of assistance to the Court in resolving the controversy between the parties. Thus, there is no such embargo on the Court to appoint a Court Commissioner at any stage of the proceeding. Even the First Appellate Court can appoint a Court Commissioner if the First Appellate Court finds that the appointment of the Court Commissioner and his report is necessary for adjudication of the case on hand. What is to be noticed that whether the report is of some consequence and assistance for the Court for effective adjudication of the dispute before it. This provision is not based on the form of the suit or the nature of the suit. The need to appoint the Court Commissioner depends on the controversy involved in the proceeding and releasing of the report.

8. However, it is to be noticed that before filing the suit the defendants themselves filed an application before the Tahasildar and the Taluk Surveyor has measured the property and submitted the report and that report is placed before the Court by the defendants themselves. Thereafter, the defendants themselves have filed one more application before the trial court for appointment of a Court Commissioner. As already noticed that application is rejected by the trial court on the premise that the documents placed before the court are sufficien