ORDER 15.05.2012 – M/s. S.C. Sathapathy and associates have entered appearance on behalf of the opposite party-plaintiff. Heard Mr. P. Kar, learned counsel appearing for the petitioner and Mr. S.C. Sathapathy, learned counsel for the opposite party. The opposite party has filed a suit for permanent injunction against the petitioner as defendant, being, C.S. No. 76 of 2011 pending before the learned Civil Judge (Junior Division), Kujanga. The plaintiff-opposite party filed an application for grant of interim injunction during pendency of the suit, on which the learned trial Court passed the order on 10.06.2011 directing the parties to maintain status quo over the disputed property. Subsequent thereto, the opposite party-plaintiff alleging violation of the order of status quo, filed an application on 04.01.2012, which has been registered as I.A. No. 112 of 1011, inter alia, stating that after passing of the status quo order, the petitioner-defendant has raised construction over the disputed property forcibly, violating the said order, The said application is subjudice. In the said interim application, an application was filed by the plaintiff under Order 39, Rule 7 C.P.C. for deputing a Pleader Commissioner for spot inspection and submission of report. An objection was filed to the said application and after hearing the parties, the learned Trial Court, by the impugned order dated 17.04.2012, holding that to ascertain the real position of the structure standing above the suit land, which is the crux of the dispute, appointment of Pleader Commissioner is highly necessary for the ends of justice, as otherwise, the petitioner will sustain irreparable loss, allowed the said application deputing a Pleader Commissioner. The defendant-petitioner, being aggrieved by the said order, has preferred the present writ application. Mr. Kar, learned counsel for the petitioner submits that the learned Trial Court, while passing the impugned order, has not assigned any reason as to in what manner, deputation of Pleader Commissioner is justified in the facts of the present case for just adjudication of the dispute. He further submits that by allowing deputation of a Pleader Commissioner to make a spot enquiry, the same clearly amounts to collection of evidence on behalf of the plaintiff in respect of his application under Order 39, Rule 2A C.P.C. Mr. He further submits that by allowing deputation of a Pleader Commissioner to make a spot enquiry, the same clearly amounts to collection of evidence on behalf of the plaintiff in respect of his application under Order 39, Rule 2A C.P.C. Mr. Kar, learned counsel in support of his above contention, relies upon the decision in the case of Bijay Kumar Jena and another v. Dussasan @ Surendra Khuntia and others, 62 (1986) CLT 201. Mr. Sathapathy, learned counsel, on the other hand, relying upon the decision in the case of J. Satyasri Rambabu v. Smt. A. Anasuya and another, AIR 2005 Andhra Pradesh 529 submits that in a suit for injunction, when in spite of a temporary injunction being granted against the defendants, if the defendants alter the nature of the suit land, the Court, in such event, should appoint a Commissioner. On perusal of the decisions of the Andhra Pradesh High Court, it appears that an injunction having been granted in a suit for perpetual injunction during the pendency of the suit and the plaintiffs having filed an interim application under Order 39, Rule 7 C.P.C. praying the Court to appoint an Advocate Commissioner to note down physical features of the suit schedule land, inter alia, stating that contrary to the undertaking given by the defendants in the injunction matter, he has been digging trenches and filling the suit schedule land, the learned Trial Court appointed an Advocate Commissioner to record the physical features of the suit schedule land. The Andhra Pradesh High Court, in such circumstances held as follows: "It is no doubt true that the Courts are normally reluctant to appoint a Commissioner for noting physical features of the suit schedule property, particularly in a suit for injunction since the same would amount to collecting evidence in favour of one of the parties. However, there is absolutely no reason to hold that it is a hard and fast rule. Having regard to the facts and circumstances of the case and particularly whenever the Court prima facie finds that there is an attempt on the part of one of the parties to alter the physical feature of the suit property and it is necessary to take note of the same, it is always open to the Court to appoint a Commissioner for inspection of such property. It is relevant, to note that Order XXXIX, Rule 7 of the Code of Civil Procedure empowers the Court to make an order for detention, preservation or inspection of any property, which is the subject matter of the suit, if the Court feels that such action is necessary or expedient for the purpose of obtaining full information or evidence. In the light of the above said provision, I am unable to agree with the contention of the learned counsel for the petitioner that the Court below has committed an error in appointing an Advocate Commissioner. As already noted above the specific plea of the plaintiffs is that in spite of the order of temporary injunction the defendant has been taking steps to alter the nature of the suit schedule land. In the circumstances, the Court below having considered the entire material on record has rightly appointed an Advocate Commissioner. The said order cannot be said to be vitiated on account of any patent error of fact or law and therefore, does not warrant interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India." However, in the decision of Bijay Kumar Jena and another (supra), this Court was considering appointment of a Commissioner for inspection of the suit property under Order 39, Rule 7 C.P.C. in similar facts as is involved in the present case. This Court analyzing the scope of Order 39, Rule 7 C.P.C. held as follows: "The object of inspection of the suit land is to find out its condition. Assistance of the Court would be necessary where the party requiring the assistance is incapable of having the knowledge in view of the nature of the suit land. There may be situation where the party seeking the assistance of the Court is not allowed to have the inspection himself or through his agents or where the evidence adduced by both sides is such that the Court feels that the report of the local investigation would help in assessing the evidence properly. The wide discretion under Order 39, Rule 7 C.P.C. is not to be exercised on the mere asking of the same. In this case, the land being agricultural land is open to everybody. Witnesses would be available to the plaintiffs to prove their assertions. The wide discretion under Order 39, Rule 7 C.P.C. is not to be exercised on the mere asking of the same. In this case, the land being agricultural land is open to everybody. Witnesses would be available to the plaintiffs to prove their assertions. In such circumstances, trial Court is justified in finding that the direction for inspection would be finding out materials for the plaintiffs. I may make it clear that in case after recording evidence the Court is satisfied on application that local inspection would be necessary, he may issue the direction on the application of either party." (Emphasis supplied) In view of the facts involved in the judgment of the Court in the case of Bijay Kumar Jena and another (supra) are almost exactly similar to the facts involved in the present case and in view of the fact that the totality of the circumstances in the case before the Andhra Pradesh High Court was different, I find that the ratio of the decision in the case of Bijay Kumar Jena and another is squarely applicable to the facts of the present case. I, therefore, find that the learned Court was not correct in allowing the application under Order 39, Rule 7 C.P.C. in deputing a Pleader Commissioner for inspection of the suit land. The impugned order, therefore, stands quashed and the writ application accordingly stands allowed. All pending Misc. Cases stand disposed of. Urgent certified copy of this order be granted as per rules. Application allowed.