AI Drafter 
TaxTMI 
TaxTMI 
2020 (3) TMI 1501
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce of Mandal Surveyor and issuance of warrant for that purpose; to execute the same within a time frame. The parties hereinafter will be referred to as they are arrayed in the suit. 2. Plaintiff is the respondent herein. The revision petitioners are the defendants in the suit. Suit OS No. 29 of 2019 was filed for perpetual injunction.. In suit, the plaintiff filed an interlocutory application under Order XXXIX Rules 1 and 2, read with Section 151 CPC seeking to grant ad-interim injunction restraining the defendants from interfering with the peaceful possession and enjoyment over the suit property. 3. Sri N. Vasudeva Reddy, learned Counsel for the petitioners-defendants would submit that without there being any application by either o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xercised by the Court below for appointment of Commission ex-parte without reference to any provision of law for appointment of an Advocate Commission, in the light of a specific provision of law provided under Order XXVI Rule 9 CPC is sustainable in law? 6. Appointment of Advocate Commission for noting down the physical features and boundaries of the land with the assistance of Mandal Surveyor could be passed under Order XXVI Rule 9 CPC, which reads as follows: "Commission to make local investigation:-In any suit in which the Court deems as 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er XXVI CPC, which reads as follows: "5. Commission or request to examine witness not within India.-Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request." "19. Cases in which High Court may issue Commission to examine witness.-(1) If a High Court is satisfied- (a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it, (b) that the proceeding is of a civil nature, and (c) that the witness is residing within the limits of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt of any mesne profits or damages or annual net profits, such person as it thinks fit directing him to make such investigation and to report thereon to the Court. 10. This Court in G. Parvatha Reddy's case (supra), while considering a similar like situation of appointment of Advocate Commission for local inspection, on an application filed under Order XXXIX Rule 1 CPC for ad-interim injunction held that there is no provision in Order XXVI of CPC conferring suo motu powers on the Trial Court or any Court vested with the powers under CPC to appoint Commissions either for the purpose of examination of witnesses, or to make local investigations, or for the performance of a ministerial act or for the purpose of examining and adjusting th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....SFIEM School, 2014 (1) ALD 537, this Court observed that the Court may suo motu appoint a Commissioner if necessary, though the issue had not directly fallen for consideration. It was also observed that in a given case, the Court feels that the report of a Commissioner may help the Court in deciding the question in controversy before it relating to identification, location, measurement etc., of the property in dispute, it may appoint an Advocate Commissioner. In the said case the Court dealt with an application filed under Order XXVI Rule 9 CPC by the defendant in the suit. I am in agreement with the view expressed by this Court in Shaik Mohammad Rafi's case (supra), in view of the language contained in Order XXVI Rule 9 CPC. 12. Now....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8) 8 SCC 671, wherein the Apex Court found that wherever there is dispute of boundaries, the Court can appoint Commissioner. The Apex Court was dealing with the issue of appointment of Commissioner in a case arising against the final judgment and decree. Moro so, the party (Punjab Waqf Board) has filed application before the Trial Court as well as appellate Court (High Court) for appointment of Commissioner for demarcation of property, but the same was dismissed. In the instant case the situation is otherwise, the proceedings are at the initial stage of considering an application to grant ad-interim injunction and no palpable reason is given by the Court below why Advocate' Commissioner is required to be appointed ex-parte, suo motu dis....