K S RAMACHAR Vs. KSKRISHNACHAR

JUDGEMENT

(1.) This is a revision against the order of the lower Court appointing a Commissioner in O.S. No. 124 of 1945. The petitioner is the defendant in the suit. The petitioner and the respondent are brothers. The respondent filed the above suit for a declaration that paimash Nos. 68/2 and 69 fell to his share in a partition that was effected between the brothers and for mesne profits. The petitioner fifed an application for the appointment of a Commissioner. The District Munsiff appointed a Commissioner who submitted the report and both the parties filed their objections to the report. The suit was dismissed and the plaintiff-respondent preferred an appeal. In appeal the suit was remanded to the trial Court mainly on the ground that the District Munsiff erred in not admitting certain revenue accounts. After remand the respondent filed another petition, I.A. No. 289 of 1947 for the appointment of a Commissioner. The main ground alleged in the affidavit was that the Commissioner appointed in the suit did not measure the suit land and that he measured only the land to the west of it belonging to the share of the plaintiff. The petitioner filed a counter-affidavit denying that fact and stated that the previous Commissioner did measure the entire land Haggupunja. The learned District Munsiff without considering the merits of the application and without giving any reasons why the previous Commissioner's report should be ignored, appointed a fresh Commissioner as he thought it was necessary in the interests of justice. This procedure is not only contrary to the express provisions of Order 26, Rule 10(3), Civil Procedure Code, but has been condemned more than once by the High Court.

(2.) In Kunhi Kutti Ali V/s. Muhammad Haji (1930) 60 M.L.J. 450 : I.L.R. 54 Mad. 239 the learned Judges have observed as follows: The exact circumstances in which he came to issue the second commission do not appear from the record that has been placed before us, but the second commission should not have been issued, unless it was thought that the report of the first Commissioner was not satisfactory, in which case the earlier commission should have been wiped out altogether....

(3.) Later on they state, In taking this course he has acted with great impropriety and contrary to what is contemplated by Order 26, Rule 10(3), Civil Procedure Code. Though the practice which he has adopted may be one that is prevalent in Malabar, it is one that should no longer be continued as has been pointed out in clear terms by this Court in Ambi V/s. Kunhikavamma (1929) 118 I.C. 296. I respectfully agree with the observations of the learned Judges. The order of the lower Court is set aside and the lower Court is directed to dispose of the application afresh in accordance with the law, The costs will abide the result.