K. Kandaswamy and Another vs K.C. Ramaswami and Others

Sathiadev, J.—On the trial Court passing an arbitrary order without looking into Order 26, Rule 9, Civil Procedure Code., this revision

petition is preferred.

On 15.4.1988 at the instance of the plaintiffs, Court appointed one Mr. K. Kandaswami as Commissioner to inspect the suit properties. He

submitted his report on 2.5.1988. On that day itself, the Court had appointed another advocate by name Mr. Sankaranarayanan as Commissioner

to inspect the properties.

It is not spelt out in the order as to where and how exactly the Courts get such a power to straightaway appoint another Commissioner without

any of the parties asking for it, by filing an application. When the procedure to be followed by the Court is found in the Code of Civil Procedure,

whenever it chooses to pass an order it has to acquaint itself with the prescribed procedure. It fails to adhere to the procedure, it would be acting

without jurisdiction. The persons who suffer by such illegalities would be the litigants. It is self-evident that the learned Judge had not equipped

himself as to how and when a second commissioner could be appointed. It is stated that no party to the proceedings had asked for the

appointment of a second Commissioner. The more or less ex parte order states that as Mr. N.P. had filed objections and with the consent of the

previous commissioner, and in the interests of justice, the second Commissioner is being appointed. It must be remembered that the objections are

either by the plaintiffs or defendants and not by counsel who appear for them. No provision of law is shown to this Court which would enable a

Court to appoint a second Commissioner with the consent of the previous Commissioner. A Presiding Officer of the Court cannot function by

relying upon the commonsense aspect as known to him, but has to function within the four corners of the Code of Civil Procedure.

Merely because certain objections have been filed, it would not result in a second Commissioner being appointed, on that day itself. Learned

Counsel for the petitioner relies on the decision in Viswanathan v. Shanmugham and Anr. (1985) 1 M.L.J. 254 : 98 L.W. 48 (S.N.) to show as to

when exactly the report of a previous Commissioner could be snapped. It is obligatory on the part of the Court to give convincing reasons as to

why the previous report filed cannot be acted upon.

Therefore, when the order passed suffers from more than one illegality, evidently committed without any knowledge as to when a second

Commissioner can be appointed, it is hereby set aside, resulting in the civil revision petition being allowed with costs. Counsel''s fee Rs. 100.