ORDER
1. This revision is directed against the order dated 21-8-1998 of the learned Junior Civil Judge, Sompeta passed in I.A.No.274 of 1998 in O.S.No.40 of 1998. The said I.A. was filed under Order 26, Rule 9 of CPC for appointment of Commissioner which was allowed by the learned junior Civil Judge.
2. The respondent (plaintiff) filed the said suit for injunction. The learned Counsel for the petitioners (defendants) challenges the order of the appointment of Commissioner of the trial Judge on three grounds.
3. Firstly, it is contended that the Commissioner was appointed at a very preliminary stage of the suit before the trial started and that as held in a decision of this Court in the case of P. Raghu Kumar v. P. Moses, 1985(1) APLJ (SN) 15, that under Order 26, Rule 9 of CPC a Commissioner can be appointed only where the Court deems local investigation to be requisite or proper for the purpose of elucidation of matters in dispute.
4. The next contention of the learned Counsel for the petitioner is that the suit itself is merely for injunction though there is an averment in the plaint that the defendants has encroached upon the plaintiffs land and that the Commissioner was sought to be appointed for ascertaining the encroachment.
5. It is then contended that considering the back-ground of the case that there was an earlier suit O.S. No.26 of 1986 filed by the plaintiffs between the same parties in which the plaintiffs title to the plaint schedule land in that case was negatived by holding that it formed part of Survey No.110/1 whereas the plaint property is covered by Survey No. 110(2), the appointment of Commissioner at this stage is not warranted.
6. The learned Counsel for the respondent on the other hand contends that
as the suit relates to a part of the survey number, it is necessary to fix the location of that part for deciding the Court on the issues raised in the suit and for enabling the Court to give any relief to the plaintiff.
7. A perusal of the order under revision would show that the learned Junior Judge has not referred to the pleadings of the parties and has not indicated what arc the questions of dispute that call for decision by the Court. He seems to have been mainly influenced by the fact that according to the plaintiff there has been a lapse of five years after judgment in the previous suit O.S. No.26 of 1986 and that as per the petitioner (plaintiff) some portion of the land was occupied by the defendants presumably during this period.
The learned Junior Judge observed as follows:
“…. it is for that reason even for the future reliefs sought to be claimed by the plaintiff’s i.e., declaration, the extent of encroachment is a necessary for valuation of the suit under Section 24(d) of A.P.C.F.Act.”
The learned Judge further observed as follows:
“Since, there was a change from 1993 (from the date of judgment to till this application is filed), it is a fit case where the Commissioner can be appointed for localisation and to note the encroachment of the plaint land by the defendants.”
8. These observations of the learned Judge would show that the order for appointment of Commissioner has been made on extraneous considerations without focussing the attention as to what are the questions of dispute which arise in the suit and whether for deciding such disputed questions, appointment of Commissioner was necessary. It is rather amazing that the learned Judge thought it necessary to appoint
a Commissioner in respect or reliefs which are likely to be sought by the plaintiff presumably after amendment of the plaint. If that was so, there was no need for appointment of the Commissioner immediately and the learned Judge could have waited till the plaint was finally amended and then ascertained what are the questions in dispdute that arise for consideration in this case.
9. The learned Judge seems to have relied on the decision of this Court in the case of Pandiri Pedda Saidaiah v. Thiruiiagiri Padmavathi, 1997 (5) ALD 430 = 1997 (3) APLJ 98 (HC) wherein it was held that for fixing the boundaries of the land in dispute, a Commissioner can be appointed. It is certainly open to the Court to appointment a Commissioner for fixing the boundaries of the land in dispute. But, the fact in this case is as indicated in the order under revision that the plaintiff was planning to amend his plaint and there is a mention of previous judgment and decree which according to the learned Judge was between the same parties in respect of the same property.
10. It is with reference to the amended plaint and the written statement that may be filed that the Court has to determine the question in dispute arising in the suit and then come to a conclusion whether the appointment of Commissioner was necessary. Further in this case, a reference is made to the previous judgment which, as observed by the learned Junior Civil Judge himself, was between the same parties.
11. By taking into consideration the pleadings of the parties in regard to the judgment in the previous suit the Court has to ascertain as to what was finally decided in the earlier suit and what is required to be decided in this case. All these questions have to be focussed by framing proper issues in the suit after the proposed amendment to
be sought by the plaintiff and on the basis of the pleadings and issues framed, the Court has to consider whether there was a need for appointment of Commissioner.
12. Considering these circumstances of the case, the appointment of Commissioner appears pre-mature. In the result, the petition is allowed and the order under revision is set aside.
13. However, tin’s order will not be a bar for the plaintiff for filing a fresh petition for appointment of Commissioner after the proposed amendment is brought out and after issues are framed in which the Court shall focuss the disputed questions that arise in the suit. The Court shall then determine whether appointment of Commissioner is necessary in view of such issues.