THE HON’BLE SRI JUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No.651 OF 2025

ORDER

This Civil Revision Petition is preferred against the order dated 25-10-2024 passed in I.A. No.90 of 2021 in I.A. No.176 of 2019 in O.S. No.202 of 2019 on the file of the I Additional Junior Civil Judge at Miryalaguda.

2. The petitioner Nos.1 and 2 herein are defendants in the suit filed by the respondents herein as plaintiff vide O.S.No.202 of

2019 for grant of perpetual injunction.

3. Heard Smt. N Aarti, learned Counsel for petitioners, and perused the record.

4. In the subject suit filed by the respondent No.1 and 2 herein, the petitioners have filed the underlying interlocutory application under Order XXVI Rule 9 CPC for appointment of advocate commissioner to note down the physical features and boundaries of land, claiming it is just and necessary for adjudication of the suit. The said interlocutory application is filed in IA No. 176 of 2019 in O.S. 202 of 2019, whereunder an order of injunction is granted in favour of respondent herein.

5. Petitioner contends that the Court below has failed to observe that the respondent/plaintiff by taking advantage of ad- interim injunction order in I.A. No. 176 of 2019 is wrongfully trying to occupy the property of the petitioners. It is thus, contended that, the appointment of Advocate Commissioner is necessary for resolving the dispute.

6. The Court below taking note the contentions on both sides, has passed a order dated 25.10.2024, observing that it has already appreciated the evidences submitted by both sides, and disposed the I.A. No.176 of 2019 on merits. The Court below further observed that the main suit is at the stage of framing of issues and at this stage, there is no need of appointment of Advocate-

Commissioner.

7. I have taken note of the contention urged.

8. In order to examine the issue at hand, it is beneficial to refer to Order XXVI Rule 9 of the Code, 1908 which reads as under:

“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.”

(emphasis supplied)

From a reading of the said rule it is to be understood that the power of the Trial Court to appoint an advocate commissioner to demarcate the suit scheduled property is discretionary in nature.

9. This Court in Arvind Kumar Agarwal Vs. Legend Estates (P) Limited, MANU/AP/2250/2014, observed that an advocate commissioner can be appointed in a suit for perpetual injunction only where there is a serious dispute pertaining to the boundaries or identity of the property.

10. Further, this Court in K. Dayanand Vs. P. Sampath Kumar, MANU/AP/2260/2014 held that the Code does not absolutely bar the appointment of an advocate commissioner to note down the physical features of a property in suit for injunction. This Court further held that if such

an exercise was necessary to reach the correct conclusions, it was just to appoint an advocate commissioner. The relevant observations are as under:

“25. There is no absolute bar on appointment of Commissioner in a suit for injunction also as per the law laid down in the above referred judgments nor the provisions of Section 75 and Order XXVI Rule 9 do impose such a prohibition. The respondent- plaintiff filed the present application for appointment of Advocate Commissioner to note down the physical features of the schedule property only and not for the purpose of finding out who is in possession of the property. The Court below recorded valid reasons for appointment of Commissioner. The Court below in the considered opini