ORDER
A.V. Srinivasa Reddy, J.
1. The petitioner in this petition under Section 115 of the CPC seeks to challenge the order dated 7-11-2001 passed by the Principal Civil Judge, Kundapura on I.A. No. IX in O.S. No. 808 of 1987.
2. The petitioner-plaintiff filed application I.A. No. IX under Order 26, Rule 9 of the CPC read with Section 151 of the CPC for appointment of Commissioner to visit the suit schedule property, note the details of work done and to submit a report. The suit as originally filed by the plaintiff was one for declaration and permanent injunction. Later on the suit came to be amended by alleging encroachment of plaintiffs property and the claim for possession of the encroached property was also added to the original prayer of declaration and permanent injunction. By I.A. No. IX the petitioner-plaintiff sought for the appointment of the Commissioner to ascertain the exact extent of encroachment by the defendant. The Court below declined to grant the prayer in I.A. No. IX Hence, the present revision petition.
3. I have heard the learned Counsel for the petitioner. Respondent, though served, is unrepresented.
4. Learned Counsel for the petitioner cited a number of decisions in support of her contention that in a suit for injunction wherein encroachment of property is alleged, it is just and necessary that a Commissioner should be appointed to conduct survey and report on the correct extent and boundaries of the property. In Payani Achuthan v. Chamballikundu Harijan Fisheries Development Co-operative Society, a learned Single Judge of the Kerala High Court held that the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. In the case on hand the petitioner had put forth a definite case before the Court below that the respondent-defendant had encroached upon 1 cent of land belonging to the petitioner-plaintiff which was denied by the respondent-defendant. When the petitioner-plaintiff himself had stated in no uncertain terms the extent” of land that had actually been encroached upon by the respondent-tenant the need to have a Commissioner appointed for measurement, demarcation and filing a report in that regard does not arise.
5. Similarly, in Anil Kamalakar Shirodkar v. Dudhappa Santu Patil, the prayer for appointment of a Commissioner was allowed because there was some ambiguity about the extent of the area under encroachment.
In Ponnusamy v. Salem Vaiyapamalat Hangamar Sangam, a controversy arose as to whether the foundations and constructions put up by the defendant were within his own land or whether they had encroached into the lands of the plaintiff, a local investigation would be the best way to find out the position and the defendant coveting to place the evidence before the Court through local investigation by the Commissioner under Order 26, Rule 9 of the CPC cannot be shut out of that right. In the case on hand the Court below is more than certain that the controversy could be very well determined by evidence that is already available on record.
Similarly in Chintapatla Arvind Babu v. Smt. K. Balakistamma alias Bhargavi, the Court justified the appointment of the Commissioner as in that case the Court felt that the matter in dispute could be best resolved by appointment of a Commissioner. It is not so in this case. The Court below is confident, in the facts of the present case, of effectively resolving the matter without reference to localisation of the site in dispute.
6. In Mahendranath v. Purnanda, the Court held,
“Where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction.
When the controversy is as to identification, location or measurement of the land or premises or object, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared”.
In the case on hand there is no controversy as regards identification, location or measurement. The petitioner-plaintiff has come out with a clear case as regards the identification, location and the extent of encroached land. The Court having had the advantage of looking into the pleadings and the evidence adduced in the case does not find it requisite to have a local investigation done through a Commissioner. Hence, the said ruling also does not advance the case of the petitioner-plaintiff any further.
7. After amendment of the plaint, the plaintiff and the defendant adduced oral evidence in the case. The impugned order of the Court below makes it obvious that the Court below has formed an opinion that the evidence on record is sufficient to effectively adjudicate upon the rival claims of the parties even on the question of encroachment and its extent. It is on the premise of the sufficiency of the evidence available on record for purpose of determining the contentious issue of encroachment that the Court below declined the relief sought for in I.A. No. IX. Order 26, Rule 9 of the CPC provides as follows:
“In any suit in which the Court deems a local investigation to be requisite or proper for purpose of elucidating any matter in dispute, or of ascertaining the marked 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 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”.
8. The need to have resort to Order 26, Rule 9 ought to be felt by the Court for purpose of elucidating certain details which, in its opinion, can neither be had from the records nor can be produced by the parties by way of oral and documentary evidence. The details so required by the Court ought to be such that in their absence determination of issues in dispute cannot be effectively adjudicated upon necessitating the appointment of Commissioner on its own or at the instance of either of the parties. Where the Court is of the opinion that the matters in dispute could be effectively adjudicated upon by having resort to the evidence available on record, the Court at its discretion can refuse to direct appointment of Commissioner. In the case on hand the Court below on more than one occasion referred to the sufficiency of evidence on record for deciding the rival claims of the parties. When the Court itself is of the view that elucidation of any matter is not required for purpose of deciding the case, the order passed by it rejecting the I.A. No. XI filed for appointment of Commissioner cannot be found fault with. In the view that I have taken, I find that the Court below has not exercised its jurisdiction illegally or with material irregularity calling for interference at the hands of this Court.
9. In the result, for the reasons stated above, there is no merit in the revision petition and it is, accordingly, dismissed.