Chockalingapuram Thevangar Vardhaga Sangam vs Chokkanathaswami Temple, Chokkalingapuram

Raju, J.—The above revision has been filed by the 1st defendant in the suit pending trial in O.S. No. 128/86 on the file of the District Munsif

Court, Aruppukkottai against the order dt. 3-8-94 in I. A. No. 448/94, whereunder the court below has chosen to dismiss the application filed by

the petitioner under O. 26, R. 9, C.P.C. praying for a direction to appoint a fresh advocate-commissioner to inspect the suit schedule property and

send a fresh report and further plan in the light of the document now produced by the petitioners, if need be after measuring the property.

Heard the learned counsel appearing on either side. There is no dispute over the position that the suit is part heard before the trial court and

equally there is no controversy over the position that at the instance of the petitioner, an advocate commissioner had been appointed and he, on

inspection had submitted a report along with plan. The only controversy is as to whether, the present application made at the time of trial, could be

countenanced and that too, for the reasons urged by the petitioner in the court below. The trial judge was of the view that since eight years have

lapsed, after the submission of the previous report by the commissioner along with the plan, and the suit is actually being tried, there is no

justification to allow the claim of the petitioner at this stage and it will be difficult to observe the condition of the property at this belated time by the

commissioner to be now appointed. Aggrieved thereby, the present revision has been filed.

The learned counsel for the petitioner contended that the court below has committed a serious error in rejecting the application filed by the

petitioner and the trial court has failed to see that even the earlier commissioner has stated that the petitioner has not produced relevant documents,

which according to the petitioner was at the relevant point of time, before the Director of Technical Education and the petitioner was able to secure

them only recently, which necessitated him to file the above applications, and this aspect of the matter has not only been omitted to be considered

by the trial court but the court below failed to see that the interest of justice really warrant appointment of a second commissioner to reinspect the

property to submit a fresh report along with the plan on perusing the document.

The learned counsel for the respondent vehemently objects to the plea taken on behalf of the petitioner and contend that the order of the learned

trial judge is quite in accordance with the law and there was no justification whatsoever for the petitioner to seek for the appointment of an

commissioner afresh at this stage of the proceedings, particularly after such a long time as noticed by the trial court.

I have heard both the learned counsel appearing on either side. Both the learned counsel have placed certain decisions for my consideration.

The decision to which a reference can be made is K. Viswanathan v. D. Shanmu gham Mudaliar, (1986) 2 MLJ 319, rendered by the then

learned Chief Justice M.N. Chandurkar. The learned Chief Justice while dealing with the evidentiary value of the commissioner''s report and the

fact that certain physical features have not been properly noted by the commissioner, discouraged the habit of courts directing a further enquiry by

the commissioner, scrapping the first report of the commissioner. It was held that the mere fact that the commissioner has failed to note certain

features which according to the defendant, were important does not mean that the whole report should be scrapped and an adequate provision to

safeguard the interest of the parties concerned is made in sub-rule (3) of Rule 10, Order 26, C.P.C.

In K. Kandaswamy v. K. C. Ramawamy, (1988) 102 MLW 440, Sethiadev, J. held that the appointment of a second commissioner, even with

the consent of previous commissioner after filing of the report of the previous commissioner, was not legal and unless convincing reasons as to why

the report of the first commissioner is not acceptable are given, there is no scope for appointment of a second commissioner. In Rajan Chettiar v.

Mahanlal, 1988 TNLJ 200, Sivasubramaniam, J. has held that there cannot be any hard and fast rule so far as the appointment of a commissioner

under O. 26, C.P.C. is concerned and there may be ever so many circumstances under which the court has to appoint a commissioner to see that

substantial justice is rendered to the parties and also to ensure that the best evidence is made available to the court so that the court could come to

the correct conclusion on the disputes raised before it.

In my view as held by the learned Chief Justice M.M. Chandurkar, in the decision reported in K. Viswanathan v. D. Shanmu gham Mudaliar,

(1986) 2 MLJ 319, it is not as though that the court concerned is powerless, but its powers have to be exercised reasonably in accordance with

the stipulation contained under O.26, Rule 10(3); C.P.C. The court below on the facts of this case, was not satisfied with the request made by the

petitioner for the appointment of a fresh commissioner. The learned counsel for the petitioner contended that such a request was made on account

of the fact that on an earlier occasion relevant document could not be made available to the commissioner and that the earlier commissioner is not

available as he had already left practice. But in my view, as noticed in the judgment placed before me, it is not that a mere lapse in any report

which necessitates the automatic/appointment of a further commissioner. That is on account of the fact that per se a commissioner''s report is not

an evidence and this is a well accepted proposition of law. The court which is concerned, with the adjudication of an issue before it, is the best

judge to decide the need or necessity to appoint a commissioner, and that too, when it is asked for a second time. If the court is satisfied with the

request, in the interest of justice to both parties, it can always proceed to set in a given case at the given stage, within the frame work of its powers

as envisaged in the code and particularly under sub-rule (3) of Rule 10 of O. 26, C.P.C. is noticed above, it will always depend upon the facts and

circumstances of the case before it. If only there is any abuse or failure to exercise its discretion properly or there is any patent error in its exercise

of discretion, it is always open to this court to interfere even at this stage of the proceedings. But on going through the order of the learned trial

judge which is challenged in this revision, I am of the view that no exception can be taken to the well considered order of the trial judge. Therefore,

I am unable to interfere with the order of the learned trial Judge. While rejecting the above revision, it is made clear that this order rejecting the

revision, shall not be construed as precluding the trial court, if it considers it necessary, to either reissue the commission or to appoint any special

commission to verify any particular fact or to get any clarification in respect of any aspect or issue before it. Except leaving liberty to the court to

do so, if it so desires, there is no need for interference with the order of the learned trial judge. The revision therefore fails and is dismissed. No

costs.

Revision dismissed.