V. Somu Gounder vs S. Natesa Gounder

Thangamani, J.—This revision petition is directed against the order of learned District Munsif, Thiruthuraipoondi in I.A. No. 626 of 1993 in

O.S. No. 93 of 1988 on his file. The respondent/plaintiff instituted that suit for declaration and possession in respect of the property measuring 11

cents on the western part of his land include Survey No. 97/1, New Survey No. 897/7 of Thethakudi village. During the pendency of the suit he

came forward with an application in I.A. No. 1360 of 1990 under Order 26, Rule 9, C.P.C. for the appointment of a Commissioner to inspect the

suit property, note the physical features and submit his report. It appears that the Commissioner has accordingly executed the warrant and

submitted his report on 30.12.1991. Thereafter he filed I.A. No. 626 of 1993 another application under Order 26, Rule 9, C.P.C. for the very

same purpose. This was resisted by the defendant for the reason that that petition without setting aside the earlier report of the Commissioner is not

maintainable and that there was no infirmity in the report of the earlier Commissioner. The court below in the impugned order has allowed the

application by merely stating that the appointment of a second Commissioner will not prejudice the defendant and that it would be in the interest of

both the parties.

In the order assailed the trial Court has not discussed the merits of the claim of the petitioner. It has not stated for what reason the appointment

of a second Commissioner is necessary, and how he has not the objection raised by the defendant/revision petitioner. Instead, it has rendered

practically a non-speaking order wherein the contents of the affidavit in support of the application and the counter are merely extracted and without

assigning reasons for its conclusions the court below has passed an laconic order. This is not the proper way of dealing with the matter.

The respondent states in his affidavit that the measurements as existing on ground are not properly mentioned in the Commissioners report. The

sketches filed along with the report do not reflect the existing state of affairs on ground. He has already filed an objection to the report of the earlier

commissioner. Since the property concerned is the "" "" land of Vedaranyaswaraswami Devasthanam, the Devasthanam Surveyor alone is aware of

the correct measurement. However, as I have already stated this aspect of the claims of the respondent has not been considered by the court

below. The order of learned District Munsif does not express any opinion how the proceedings and the report of the earlier Commissioner are not

satisfactory.

Time and again this Court has depreciated the practice of appointment of successive Commissioners on the same aspect without setting aside

the earlier reports. In Konasamy v. Ramaswami (1988) 2 L.W. 440, Sathiadev, J. has held that there is no provision of law 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 common sense 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. It is obligatory on the

part of the Court to give convincing reasons as to why the previous report filed cannot be acted upon. In Viswanathan v. Shanmugham (1985) 1

M.L.I. 254. Nainar Sundaram, J. has pointed out that it is well settled proposition that until the court is dissatisfied with the proceedings and report

of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less the scrapping of the

earlier report as a whole and appoint a fresh Commissioner. The power is circumscribed by the principles under Order 26, Rule 10(3). The power

can be exercised only after the court below renders a finding that the proceedings and the report of the earlier Commissioner arc not satisfactory

and there is need for a further enquiry.

Learned Counsel for the respondent based reliance on Chhotu Mauju Vs. Gurbhajan Singh, and Bared Prasad v. Baiju Nanda AIR 1937 Pat.

671, which lay down that if the court is dissatisfied with the report of the Commissioner, it can issue another Commission but still the report of the

first Commissioner cannot be wiped out of the record. These decisions cannot help the respondent in any manner because they deal with a

situation when rightly or wrongly more than one Commissioners arc issued for legal investigation in respect of the same matter. Whereas in the

present instance the second Commissioner has not an executed the warrant and in any event on the ratio laid down in the decisions of this Court

referred to above the order of the appointment of the second Commissioner without setting aside the report of the earlier Commissioner is

unsustainable.

In the result, the civil revision petition is allowed and order of appointment of the Commissioner in I.A. No. 626 of 1993 is set aside and the

matter is remitted to the trial Judge for fresh disposal of I.A. No. 626 of 1993 in the light of the observations made in this order. In view of the

unsatisfactory method of disposal of the petition by the court below, the Registry will send a copy of this order to the concerned District Judge

under whom the officer is serving at present for giving him suitable instructions. No cost.