UNNIKRISHNAN Vs. LAKSHMANAN

JUDGEMENT

(1.) The defendants in O.S.No.9/2001 on the files of the Munsiff Court, Mannarkkad, have filed this original petition, invoking the powers of this Court under Article 227 of the Constitution of India, assailing Ext.P9 order of the Lower Appellate Court, as per which, it has allowed at the appellate stage, an application filed by the plaintiff - who is the respondent herein, to take out an Advocate Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure (CPC), so as to demarcate the plaint schedule property as also the property of the defendants.

(2.) Sri.P.B.Krishnan, learned counsel appearing for the petitioners, made extensive arguments with respect to the powers of the Courts under Order XXVI Rule 10 of the CPC, primarily contending that unless the already available Commission Report and Plan - which were marked as Exts.C3 and C4 by the Trial Court - are "set aside" a new Commission to conduct a site inspection could not have been be ordered by the Lower Appellate Court and that too in an appeal at the instance of the plaintiffs against the decree of the Trial Court dismissing the suit.

(3.) Sri.P.B.Krishnan cited several precedents in support of this proposition, including in Swami Prmananda Bharathi v. Swami Yogananda Bharathi [1985 KLT 144], asserting that this principle of law has now attained the status of a doctrine, which has stood the test of time. He thus prays that Ext.P9 be set aside, since, through the said order, the Lower Appellate Court has permitted a new Commission to be appointed, though the earlier Report and Plan placed on record by the earlier Commissioner has not been 'set aside'.