Muslim Middle School vs Vedavalli Ammal Trust

N. Kannadasan, J.—The above Civil Revision Petition is filed against the order passed by the lower court in scrapping the report submitted

by the Advocate Commissioner in I.A. No.1620 of 1999 and appointing another Advocate Commissioner.

According to the learned counsel for the petitioner, even though certain defects are existing in the report submitted by the earlier Advocate

Commissioner, Order 26 Rule 10(3) of CPC empowers the court to direct a further enquiry by the very same Commissioner who shall file a

supplementary report and in spite of the said direction, if any deficiency is noticed, it is only thereafter, the earlier report can be scrapped and

another Advocate Commissioner can be appointed. In this connection, the learned counsel has relied on the decisions of this Court as well as the

High Court of Kerala.

Per contra, learned counsel for the respondent would contend that the Court below has scrapped the report of the Advocate Commissioner by

considering the fact that serious defects are existing and as such, would also contend that the order does not call for interference.

I have considered the rival contentions of the parties.

It is not in dispute that there are certain defects in the report submitted by the earlier Advocate Commissioner, which was fairly admitted by the

learned counsel for the petitioner. However, as rightly pointed out by the learned counsel for the petitioner, Order 26 Rule 10(3) of CPC

empowers the court to order further enquiry. It is only after ordering further enquiry, the very same Commissioner can be directed to file a

supplementary report and even thereafter defects are pointed out, the Court below is entitled to scrap the earlier report and it can appoint another

Advocate Commissioner. In this connection, it is useful to refer to the decisions of this Court reported in Chockalingapuram Thevangar Vardhaga

Sangam Vs. Chokkanathaswami Temple, Chokkalingapuram, , and Veppanathar alias Karuppannan and another Vs. Kaliappan, and the decision

of the Kerala High Court, reported in Dr. P. Subramoniam Vs. K.S.E. Board and Others, .

The above decisions make it clear that mere lapse in the Advocate Commissioner''s report does not necessitate automatic appointment of

another Advocate Commissioner and the Court is entitled to order for further enquiry. Thereafter, if the report is not found satisfactory, then the

Court can scrap the earlier report and appoint another Advocate Commissioner. Admittedly, the Court below has not adopted this procedure.

Accordingly, the order of Court below is set aside and there will be a direction to the Court below to order further enquiry by the very same

Advocate Commissioner who shall be directed to submit a supplemental report immediately. It is made clear that the entire process namely

direction to the earlier Advocate Commissioner as well as the submission of the report shall be completed within a period of two weeks from the

date of receipt of a copy of this order. It is made clear that the present order shall not be considered as if this Court has rendered a finding in

favour of the either party.

The Civil Revision Petition is allowed with the above direction. Consequently, C.M.P. No. 4464 of 2004 is closed.