ARUMUGHAM AND OTHERS Vs. ARUMUGHAM

JUDGEMENT

(1.) The issue involved is whether in the appellate Court a Commissioner can be appointed for the purpose of finding out the physical features and of the location of the channel, particularly when the matter was pending in the trial Court and the had been two inspections, one on 19th November 1974 and the other on 12th December 1974. It appears that I.A. No. 601 of 1976 was filed by the respondent herein for the same purpose, for which the present Commission is being issued, but it was dismissed on 19th November 1976, since the respondent herein did not press for the same. On this Mr. Thyagaraja Iyer pleads that when the very aspect now involved has already been posed before the trial Court in I.A. No. 601 of 1976 and the respondent herein having not interested himself in asking for the Commissioner to again visit the property, the appellate Court was not justified in directing the appointment of the Commissioner. He contends that there is no jurisdiction in the appellate Court appointing a Commissioner in a matter like this, and relict upon the decision in Moosa Kutti, In re, 1953 -1 -M.L.J. 632=65 L.W. 418 to show that the power conferred on the appellate Court under Or. 41, R. 27 read with S. 107(2) and Or. 26, R.9, C.P.C. disentitles the appellate Court from appointing a second Commissioner. But, in this case, it will be seen that the appellate Court hat only directed the tame Commissioner to do the inspection and the commission warrant had been reissued with a direction to find out whether the channel leading to the defendant's land is in the patta land of the plaintiffs or in the poromboke land. The counsel for the petitioner then refers me to the decision in Rajagopala Iyer v/s. Ramachandra Iyer, 81 L.W. 374. I find the learned Judge in that case holding that the lower appellate Court cannot as a matter of course, appoint a Commissioner merely because it has the power to do so. It should first of all, find out whether the circumstances justify the appointment of a Commissioner. It has been held that the appellate Court has the power, but unless the merits of the matter justify, there can be no question of a fresh Commissioner being appointed. In this context, reference it also made to the power of the appellate Court under S. 107, C.P.C. to show that there is no power in the appellate Court to appoint a Commissioner. I do not think such a contention can be entertained, particularly, in view of the decision of this Court in Rajagopala Iyer v/s. Ramachandra Iyer, 81 L.W. 374 and when the appellate court is invested with the power to take additional evidence or to require such evidence to be taken, and where the lower appellate Court can go to the extent of recording additional evidence if the ends of justice requires, in matters like this, then could be nothing against the lower appellate court appointing the same Commissioner by reissuing the warrant to find out the location of the channel, provided the court considers it relevant for the disposal of the appeal.

(2.) Counsel for the petitioner pleads that it will be open to him to place before the lower appellate court the particulars which are required to be collected by the Commissioner, and as to which are irrelevant and extraneous to the matter involved to the suit. Hence, the court below shall take into account such objections, if any taken, and dispose of the same on their merits, when the report is filed. One other aspect that requires to be considered is about the court below directing the plaintiff to pay the costs involved in the appointment of the Commissioner. It is clear that the court below had not taken into account the fact that the necessity for the appointment of a commissioner had arisen, merely because the respondent had preferred an appeal, and as already stated, it was the respondent who filed I.A. No. 601 of 1976 seeking for the reissue of the commission, and when such a commission is issued the (defendant -appellant) respondent herein has to pay the Costs of the Commissioner, and the Court can only collect the coats of the Commissioner from the respondent herein. To this extent the order is set aside and the C.R.P. is allowed, and in other respects, the Civil Revision Petition stands dismissed. No costs.