V SOMU GOUNDER Vs. S NATESA GOUNDER

JUDGEMENT

(1.) 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 O.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 0.26, 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.

(2.) 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.

(3.) 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)] M.L.J. 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 0.26, 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 are not satisfactory and there is need for a further enquiry.