ORDER
S. Sardar Zackria Hussain, J.
1. The revision petitioner is the defendant in O.S. No. 140 of 2002 on the file of the Additional District Munsif Court, Namakkal. The revision is filed against the order dated 13.12.2002 made in I.A. No. 325 of 2002 in I.A. No. 213 of 2002.
2. I.A. No. 325 of 2002 was filed to scrap the report and the rough plan of the first advocate-commissioner filed in I.A. No. 213 of 2002. The trial Court after enquiry dismissed the petition.
3. The respondents/plaintiffs filed the suit on 12.2.2002 for declaration that the defendant is not entitled for any irrigation channel and also for pathway in the suit lands at Pudukottai village, Namakkal District and for consequential permanent injunction. The suit was contested by filing written statement on 26.6.2002. The plaintiffs also filed I.A. No. 213 of 2002 along with the suit, in which, advocate-commissioner was appointed, who after inspecting the suit properties on 14.2.2002 filed report and rough plan. At the time of inspection by the first advocate-commissioner, the defendant was present near the suit properties and only after informing him, the first advocate-commissioner inspected the suit properties. The defendant has filed objection to the report of the first advocate-commissioner on 7.3.2002 and he also filed I.A. No. 324 of 2002 stating that the report and rough plan of the first advocate-commissioner is incorrect in material features and seeking local inspection of the suit properties by the Court, in which, it appears, another advocate-commissioner was appointed without setting aside the report of the earlier advocate commissioner. The second advocate-commissioner appointed in I.A. No. 324 of 2002, after inspecting the suit properties has filed report along with rough plan. Thereafter, the defendant has filed I.A. No. 325 of 2002 to scrap the rough plan and report of the first advocate-commissioner appointed at the instance of the plaintiffs in I.A. No. 213 of 2002.
4. The trial Court considering the objections raised by the plaintiffs that the report and rough plan filed by the first advocate-commissioner appointed at the instance of the plaintiffs cannot be scrapped, in that the physical features of the suit properties that existed at the time of filing the suit will differ and accordingly dismissed the petition. The order is now challenged in this revision.
5. The learned counsel for the revision petitioner/defendant mainly argued that inasmuch as the second advocate-commissioner appointed at the instance of the Court in I.A. No. 324 of 2002 after inspecting the suit properties has filed his report and rough plan, the report and rough plan of the first advocate-commissioner appointed at the instance of the plaintiffs are to be scrapped. The learned counsel also submitted that though I.A. No. 324 of 2002 was filed for local inspection by Court, the appointment of second advocate-commissioner by the Court is proper. In support of such contention, the learned counsel has relied on the following decisions:-
(1) Vemba Gounder v. Pooncholai Gounder reported in 1996(1) M.L.J. 426, in which, this Court held that the Court if satisfied that the report is not satisfactory need not insist on filing application to appoint second advocate-commissioner.
(2) R. Viswanathan v. P. Shanmugham and another reported in 1985(I) M.L.J. 254, in which, this Court held that the trial Court has got power under Order 26 Rule 10(3) C.P.C. for appointment of fresh advocate-commissioner on recording finding that the proceedings and the report of the earlier commission are not satisfactory.
6. Learned counsel for the respondents/plaintiffs submitted that the appointment of second advocate-commissioner by the trial Court in I.A. No. 324 of 2002, which was filed for local inspection by the Court itself is not proper without recording any finding that the plan and the report of the first advocate-commissioner are not satisfactory and without setting aside the first commission appointed at the instance of the plaintiffs, who after inspecting the suit properties, during which time the defendant was present near the suit properties, has filed report along with the rough plan. In this regard, the learned counsel further submitted that if the report and rough plan of the first advocate-commissioner are not satisfactory, necessary steps could have been taken by the defendant for re-issue of the warrant to the same commission for the purpose of rectifying defects if any. In any event, the learned counsel submitted that the report and the rough plan of the first advocate-commissioner cannot be scrapped, since after inspecting and noting down the physical features at the time of filing the suit, the report and rough plan have been filed by the first advocate-commissioner and as such, the report and rough plan of the first advocate-commissioner, cannot be scrapped and accordingly the trial Court has rightly dismissed the petition and such finding does not call for any interference by this Court under Section 115 C.P.C. In this regard, the learned counsel relied on the following decisions:-
(1) K. Viswanathan v. D. Shanmugham Mudaliar and Anr. reported in 1986(I) M.L.J. 319, in which, this Court has held thus:-
“Under Order 26, Rule 10(2), C.P.C. the report of the Commissioner is evidence in the suit and forms part of the records. The report of the Commissioner has therefore, evidentiary value and can be utilised by either of the parties as evidence in support of their case. This provision cannot be set at naught by scrapping the report. The effect of scrapping the report is that the report which is evidence in the case and part of the record ceases to be so and cannot be referred to by the parties. The mere fact that the Commissioner has failed to note certain features which according to the defendant were important does not mean that the whole report should be scrapped. Adequate provision to safeguard the interest of the parties concerned is made in sub-rule (3) of Order 26, Rule 10, C.P.C.”
(2) Chokkalingapuram Thevangar Vardhaga Sangam, West Car Street, Chokkalingapuram, Aruppukottai Taluk, through its President v. Chokkanathaswami Temple, Chokkalingapuram, Aruppukottai Town, represented by its Executive Officer reported in 1996(I) M.L.J. 254, in which, this Court has held thus:-
“Civil Procedure Code (V of 1908) Order 26, Rule 10(3). Commissioner appointed and report submitted by him. Mere lapse in report, cannot be ground for appointment of second commissioner. Commissioner’s report, is not per se evidence. Court has discretion to appoint second commissioner depending on facts and circumstances of the case before it. High Court will interfere only if there is abuse for failure in exercising that discretion. It is not that mere lapse in any report which necessitates the automatic appointment of a further commissioner. That is on account of the fact that per se a commissioner’s report is not an avoidness and this is a well accepted proposition of law. The court which is concerned, with the adjudication of an issue before it, is the best judge to decide the need or necessity to appoint a commissioner and that too, when it is asked for a second time. If the court is satisfied with the request, in the interest of justice to both parties, it can always proceed to act in a given case at the given stage, within the frame work of its powers as envisaged by the code and particularly under Sub-rule(3) of Rule 10 of Order 26, Civil Procedure Code is noticed above, it will always depend upon the facts and circumstances of the case before it. If only there is any use or failure to exercise its discretion properly or there is any patent error in its exercise of discretion, it is always open to this Court to interfere even at this stage of the proceedings.”
(3) Veppanathar alias Karuppannan and Anr. v. Kaliappan reported in 2000-I Law Weekly 893, in which, this Court has held thus:-
“Under Order 26, Rule 10, Sub-rule (3) the Court, if it is dissatisfied with the report, can direct setting aside the report, the Court can direct the Commissioner to rectify the defect or deficiency, taking into consideration the objections and evidence let in, in that behalf and to file a supplementary report. As far as possible, Commissioner, who has already visited the property should be directed to file a supplementary report and only if that is not possible, the report could be scrapped.”
7. The suit O.S. No. 140 of 2002 was filed for the relief of declaration and for permanent injunction on 12.2.2002. The first advocate-commissioner appointed in I.A. No. 213 of 2002 inspected the suit properties immediately on 14.2.2002 at 4.30 p.m. in the presence of the plaintiffs and their advocate. The defendant was also present near the suit properties and only after informing the defendant, the first advocate-commissioner inspected the suit properties. Thereafter, again the advocate-commissioner inspected the suit properties along with the advocates and both parties and only thereafter filed the report and rough plan. In the report of the first advocate-commissioner, it has been mentioned that there is thatched house and lands of the defendant on the south of the lands of the plaintiffs and that there is no channel and pathway from the land of the plaintiffs to the land of the defendant. Objection was filed for the report and the rough plan of the first advocate-commissioner that it is not mentioned that thorns had been put up recently, though it was shown to the first advocate-commissioner. It is also stated that some particulars had not been noted by the first advocate-commissioner. On the same day, the defendant filed I.A. No. 324 of 2002 for local inspection of the suit properties by the Court stating that the first advocate-commissioner had not noted down the physical features in the report and rough plan. But, however, without recording any finding that the report and rough plan of the first advocate-commissioner are not satisfactory and without setting aside the report and rough plan of the first advocate-commissioner instead of dismissing or allowing the petition for local inspection, the trial Court in an erroneous approach to the matter and without perusing the entire materials available on record, merely on the petition filed by the defendant that physical features are not noted down correctly by the first advocate-commissioner, appointed second advocate-commissioner, which is thoroughly incorrect.
8. The second advocate-commissioner after inspecting the suit properties has filed the report and plan on 14.3.2002. Thereafter, the defendant was examined on 7.6.2002 as P.W.1 in I.A. No. 325 of 2002 filed to scrap the report and rough plan filed by the first advocate-commissioner. The defendant filed written statement on 26.6.2002 stating in paragraph 3 that there have been a pathway from north through the lands of the plaintiffs and to the house of the defendant on the south. It is further stated in paragraph 5 of the written statement that there was irrigation channel till the land of the defendant running from the north to the lake on the south and since it was not used for about 2 years, the same has been deteriorated and as such, there is a channel only on the north of the temple and thereafter there have been no channel and seeking necessary relief, the defendant will take appropriate relief separately. The first advocate-commissioner was also examined as C.W.1 on 11.7.2002 in I.A. No. 324 of 2002. Though the first advocate-commissioner has not stated in the report and rough plan about the pathway that runs to the land of the plaintiffs through the land of the defendant on the south of the suit properties, the second advocate-commissioner in his report has stated that there is well beaten pathway running in between the two fields of the first plaintiff in the north south ridge. The second advocate-commissioner also stated in his report that there is a pathway from the point “J” till threshing-floor(fsk;) of the defendant. The second advocate-commissioner also stated that it was shown by the advocate for the plaintiffs that there is a separate pathway to reach the house of the defendant from south of his house which has been shown in the plan as “KS” and the said pathway is well beaten running north to south and on the bund (Xilf; Fl;il).
9. The fact remains that at the instance of the plaintiffs, in the petition I.A. No. 213 of 2002 filed along with suit, for appointment of advocate-commissioner, an advocate-commissioner was appointed, who after inspecting the suit properties, filed report and rough plan and the defendant not satisfied with the report and the rough plan of the first advocate-commissioner, has filed petition I.A. No. 324 of 2002 stating that the report and rough plan of the first advocate-commissioner is incorrect in material features and seeking local inspection of the suit properties by the Court, in which without setting aside the earlier report and rough plan of the first advocate-commissioner, another advocate-commissioner was appointed, who also after inspecting the suit properties, has filed report and rough plan, which made the defendant to file the petition I.A. No. 325 of 2002, subject matter of this revision to scrap the report and rough plan of the first advocate-commissioner.
10. As rightly argued for the plaintiffs, the very appointment of the second advocate-commissioner without setting aside the report and plan of the first advocate-commissioner itself is not proper and therefore, the report and rough plan of the second advocate-commissioner cannot form part of the records unless the report and rough plan of the first advocate-commissioner are eschewed.
11. The very appointment of second advocate-commissioner is irregular and illegal and therefore, the report and rough plan of the second advocate-commissioner is to be set aside. The trial Court rightly refused to scrap the report and rough plan of the first advocate-commissioner, in view of the fact, no petition was filed to set aside the same before appointment of the second advocate-commissioner or even thereafter and before inspection of the suit properties by the second advocate-commissioner.
It is open to both parties to file appropriate petitions for reissue of the warrant to the first advocate-commissioner, if not satisfied with the report and rough plan filed by the first advocate-commissioner or for appointment of another advocate-commissioner, after setting aside the report and rough plan of the first advocate-commissioner. In that view, the order of the trial Court in dismissing the petition I.A. No. 325 of 2002 to scrap the report and rough plan of the first advocate-commissioner being justifiable need not be interfered with.
12. In the result, the Civil Revision Petition fails and the same is dismissed. However, the report and rough plan of the second advocate-commissioner filed in I.A. No. 324 of 2002 appointed at the instance of the Court, is set aside. It is open to both parties to file appropriate petitions for reissue of the warrant to the first advocate-commissioner, if not satisfied with the report and rough plan filed by the first advocate-commissioner or for appointment of another advocate-commissioner, after setting aside the report and rough plan of the first advocate-commissioner. No costs. Consequently, the petition C.M.P. No. 12762 of 2003 is closed.