Court Commissioners can be appointed to clarify existing factual disputes, not just to gather new evidence.

ORAL ORDER

The petitioners are defendants in O.S.No.194/2008. They are at the doors of this Court calling in question an order passed by the concerned Court allowing an application filed under Order XXVI Rule 9 of the Code of Civil Procedure directing appointment of Court Commissioner to bring out the measurement and the exact location of the property.

2. Heard Sri.A.Madhusudhana Rao, learned counsel appearing for the petitioners and Sri.Ganesh, learned counsel appearing for respondent No.2.

3. Facts in brief germane are as follows:

(a) The respondents-plaintiffs institutes O.S.194/2008 on 06.08.2008 seeking a relief of declaration and permanent injunction against defendants. Due to erroneous valuation, it transpires that the plaintiffs deletes the prayer of declaration and retains the prayer of permanent injunction against the defendants and brings in an amended plaint, having filed it on 22.09.2017, after which the issues have been framed by the concerned Court and the trial is on.

(b) What has driven the defendants-the petitioners to this Court is not the merit of the suit, but an application filed by the respondents in I.A.No.19 under Order XXVI Rule 9 of the Code of Civil Procedure , seeking appointment of a Commissioner to ward of obfuscation that is generated before the concerned Court. The defendants filed their objection to the aforesaid application. The concerned Court allows the application and directs appointment of a Commissioner to measure the property which forms the part of a particular release deed.

(c) The learned counsel Sri.A.Madhusudhana Rao appearing for the petitioners would vehemently contend that the suit is of the year 2008 and at its fag end, the application is filed under Order XXVI Rule 9 of the Code of Civil Procedure and it has been allowed erroneously. According to the learned counsel, there is no confusion with regard to the property as there is admission by PW.1 that the subject property is not a part of the release deed, as is averred in the plant itself. He would take this Court through the evidence of PW.1, to buttress his submission with regard to the fact that the suit schedule property does not form part of the release deed. The learned counsel would thus submit that the order impugned allowing the application filed under Order XXVI Rule 9 of the Code of Civil Procedure , is erroneous and contrary to the evidence.

(d) Per contra, the learned counsel Sri.Ganesh, appearing for the respondent No.2 would refute the submission again taking this Court through the evidence and the plaint averments to contend that there is serious dispute with regard to the location of the property as the release deed mentions a rice mill and to verify the boundaries, it was necessary for the Court to appoint a Court Commissioner. The learned counsel would further contend that it is for the Court to ward of the confusion that has generated in the evidence, Court Commissioner is appointed, and there is no prejudice that would be caused to the petitioners if the property would be identified and the suit is taken to its logical conclusion on such identification.

4. I have given my anxious consideration to the submissions made by learned counsel for the parties and have perused the material on record.

5. The afore narrated facts are a matter of record. They would not require any reiteration. What has driven the petitioners-defendants to this Court is the order allowing the application filed under Order XXVI Rule 9 of the Code of Civil Procedure .

6. I deem it appropriate to notice the plaint and the Written Statement for the purpose of considering the submissions made by the learned counsel for the petitioners. The plaint averment and the schedule in the plaint is as follows:

"3(a) Th