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2004 DIGILAW 420 (AP)

D. Sambasiva Rao Chowdary v. R. Kamashastry

2004-04-02

G.ROHINI

body2004
G. ROHINI, J. ( 1 ) THIS civil revision petition is directed against the order dated 20. 11. 2002 in LA No. 382 of 2002 in OS No. 5 of 2001 on the file of the Court of the Junior Civil judge, Bodhan, Nizamabad District, wherein the Court below allowed the application filed by the plaintiffs under Order 26, Rule 9 of the Code of Civil Procedure (for short, the Code ) seeking appointment of advocate-Commissioner to survey and demarcate the suit schedule site with the help of the Mandal Surveyor. ( 2 ) THE 1st defendant who is the 1st respondent in LA. No. 382 of 2002 is the revision Petitioner. ( 3 ) I have heard the learned Counsel for the revision petitioner as well as the respondent and perused the material on record. ( 4 ) THE only contention raised by the learned Counsel for the Revision Petitioner is that the appointment of Advocate-Commissioner as prayed for would enable the plaintiffs to collect evidence to substantiate suit claim and therefore the order under Revision is erroneous and liable to be set aside. ( 5 ) IT is to be noted that the main suit is filed for a declaration that the suit site is part and parcel of the internal road of the plaintiffs connecting the Plaintiffs College and Gunj Road. The Plaintiffs have already examined four witnesses and Exs. A-1 to a-10 documents have been marked to substantiate their case. At that stage, the plaintiffs filed this application seeking appointment of Advocate-Commissioner to survey and demarcate the suit site and the Court below having expressed that in order to resolve the controversy once for all and in order to come to a just decision in the matter it is necessary to appoint advocate-Commissioner allowed the application. It is true that a Commissioner for local investigation cannot be appointed in exercise of the jurisdiction under Order 26, rule 9 of the Code, if the same enables the parties to the suit to collect evidence. But, it is always open to the Court to direct local investigation if in the facts and circumstances of the particular case the Court comes to a conclusion that local investigation is necessary for the purpose of obtaining evidence which from its peculiar nature can only be had on the spot. But, it is always open to the Court to direct local investigation if in the facts and circumstances of the particular case the Court comes to a conclusion that local investigation is necessary for the purpose of obtaining evidence which from its peculiar nature can only be had on the spot. ( 6 ) IN the case on hand when the learned Trial Judge on appreciation of the material already brought on record opined that the issue in controversy can only be settled effectively by appointing the commissioner as prayed for, which can neither be termed as without jurisdiction or contrary to law, I do not see any justifiable to reason to interfere with the same in exercise of jurisdiction under Article 227 of the Constitution of India. ( 7 ) ACCORDINGLY, this civil revision petition is dismissed. No costs.