ORDER
Varghese Kalliath, J.
1. This is a civil revision petition filed by the defendant in a suit for injunction. The plaintiff is a building tenant of the defendant. The plaintiffs case is that when the tenant plaintiff wanted to install certain machineries in the tenanted premises the defendant attempted to cause some obstructions and that necessitated the filing of the suit.
2. The contention of the defendant is that the suit premises was never in the occupation of the plaintiff and that he is attempting to trespass into the suit premises and to facilitate the trespass into the suit premises he has filed the suit. The defendant further contended that the plaintiff is in occupation of only a chayippu and that he is not in occupation of the shed in question.
3. In order to establish his case, the defendant wanted a commission to be appointed by the court for local inspection. The court appointed a commission and the Commissioner has filed a report on 23-11-1984. The plaintiff filed objection to the Commissioner’s report. No objection has been filed by the defendant to the Commissioner’s report.
4. The court passed an order of temporary injunction against the defendant on 14-3-1985. There was an appeal and a revision against the order passed by the trial court and the appellate court at the instance of the defendant. The defendant was not successful in those proceedings. Subsequently the defendant has filed I. A. 132 of 1986 for remitting the commission order to the same Commissioner for inspecting the property again to note certain additional matters which according to the revision petitioner the Commissioner has omitted to note in his report even though the revision petitioner wanted the Commissioner to note those facts. Naturally the plaintiff opposed the application. He submitted that there is absolutely no necessity for sending the Commissioner again for a local inspection and that the purpose and intention of the defendant in filing the application is only to protract the trial of the suit. The trial court accepted what the plaintiff said and held that there is no merit in the application. The trial court held that the petition has been filed after considerable delay in the matter. The court has catalogued the dates relevant in the matter to show that there is considerable delay in requesting the court to direct the Commissioner to make a second inspection to note further facts which the defendant wanted the Commissioner to note. The court passed an order dismissing the application. This order is challenged in this C. R. P.
5. The counsel for the petitioner submitted that the court below in fact did not consider his application on merits. He submits that though in his application he has spotlighted his grievances, the court below did not even look into it. The court below was carried away by certain events that happened after the filing of the report and after the order of temporary injunction. There is force in this submission. The application ought to have been considered on merits, the question is whether the defendant, in the light of the report and circumstances revealed in the case is right in requesting the court to send the Commissioner again for noting certain things, which according to the revision petitioner, the commission has omitted to note in his report. The revision petitioner has stated specifically three items of things to be noted by the Commissioner, and the same were omitted to be noted by the Commissioner.
6. The counsel for the respondent submitted that the trial court has got jurisdiction to remit the Commissioner’s report or to send a second commission for local inspection only in the event of setting aside the earlier commission report and without setting aside the commission report the court will not get any jurisdiction to issue a second commission. He further submits that the revision petitioner did not object to the commission report and never wanted to set aside the report. The learned counsel refers me to the decision reported in Premananda Bharathi v. Yogananda Bharathi 1985 Ker LT 144 : (AIR 1985 Ker 83). He invites me to note particularly the observations contained in paragraph 6 of the judgment. In para 6 of the judgment the Division Bench of this court has considered the question in great depth and has traced the law on the point from the early days. The Division Bench relied on a decision of 110 years antiquity. It cited the decision reported in (1875) 23 WR 93. Certain other decisions also have been cited in this case. It has to be remembered that the main purpose and object of issuing a commission for a local investigation is not so much to gather evidence which the court can obtain by the methods provided in the Evidence Act and allied Acts, but to obtain evidence which from its very peculiar nature can be had on the spot. It is intended to shed light upon the matter in controversy on the basis of a first hand information on a spot study, and to assist the court to form a decision on the disputed question. Section 75 of the Code delineates and limits the power of court to issue commissions. Order 26 contains the detailed provisions but certainly they do not enlarge the width of Section 75. The provisions in Order 26 are exhaustive in nature and self contained to meet the situations where the legislature intended that a commission should issue. Here we see a clear deviation from the English law which enables the court to issue commission, when it shall appear to the court necessary for the purpose of justice. This significant deviation from English law would perhaps indicate that the court’s power in the matter of issue of commission is limited and circumscribed as per the provisions of the Code.
7. In the case reported in (1875) 23 WR 93, it is observed thus : —
“It seems to us that when an enquiry has been made by a Commissioner under the provisions of the Code of Civil Procedure, the Court to which that enquiry is reported ought not, unless it absolutely quashes and annuls the proceedings of the first enquiry, order another enquiry on the same matter unless the subject-matter of enquiry by the second Ameen can be distinguished from the subject-matter of the first enquiry, in which case, of course, if there has been an omission and if the same Ameen cannot be deputed again, another officer might be employed”.
8. These words in the above quotation from the decision should be noted carefully, “if there has been an omission”. It is a certain indication that the court will retain jurisdiction to issue the same commission or if necessary another commission to report to the court what has been omitted by the first Commissioner. This principle is stated in the other decision cited by the Division Bench Lekshmi v. Ouseph Mariyam (1952) 42 TLR. 429. It runs thus : —
“When a Commissioner appointed for a local investigation makes a report it is not competent for a court unless it annuls the proceedings of the first enquiry to depute a second Commissioner for the same purpose”
So I do not think that the court has no lack of jurisdiction (sic) if the court, for any reason is dissatisfied with the proceedings of the Commissioner to send the same Commissioner to note things which he ought to have noted but he omitted to have noted in the report. This is asking for a report to supplement the earlier report. Just to supply the omission. The decision cited by the counsel for the respondent may not assist him to say that under no circumstance without setting aside an earlier report, the court can issue a second commission or the same commission to note details which have been omitted by him when he made the first report. It is clear from the provision. Order 26, Rule 10(3) says that “where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit”. “Further enquiry to be made” presupposes that an enquiry by the same Commissioner also is possible if the court feels so., If the report of the first Commissioner is found to be deficient on any point, the proper course would be to direct the same Commissioner to remedy the defects. If the court is dissatisfied with the proceedings of the Commissioner, the court gets jurisdiction to direct such further enquiry, to be made as the court shall think fit. Of course this is a discretionary power of the court and that power has to be exercised judicially. Discretion when related to a court of justice means a well grounded legal discretion guided and guarded by law. The judge is of course free but he is still not wholly free. He is to exercise his discretion informed by rules not by innovation at pleasure. It should not sound arbitrary dictatorial and self opinioned. It should not be capricious and whimsical, but legal and regular. The question here is whether the court below has exercised the power in a judicial manner or whether the court has failed to exercise the jurisdiction. I feel that the court has failed to exercise the jurisdiction or at any rate the court has acted in the exercise of its jurisdiction with material irregularity. The Court ought to have considered the application on its merits. The court ought to have considered the application in the light of the report submitted by the Commissioner. It ought to have addressed itself as to whether there was any omission on the part of the Commissioner in noting the details, which the petitioner has the right to insist the Commissioner to note in his report. Further whether the omission was significant and serious if there was such omission what were the circumstances and whether the party complaining about the omission was also responsible for the omission. The trial court has not adverted to these points at all. Now the petitioner submits before me that this court can give adequate direction to the Commissioner to note the facts detailed in paragraph 3 of the revision petition with a condition that these things can be noted independently of the matters already reported by the Commissioner. I feel that the matters referred to by the revision petitioner are relevant to the issue in question. In the circumstances, I think the application I. A. 132/86 of the revision petitioner deserves to be allowed. I direct the trial court to issue an order to the Commissioner to inspect the property once again and submit an additional report on the matters, the petitioner wants to note as stated in his petition. I need not say that the plaintiff can file objection to the additional report as and when it is submitted by the Commissioner.
With these observations, the revision petition is allowed. No order as to costs.
9. Issue carbon copies of this order to the parties on usual terms.