1. The Revision is filed against the order in I. A. No. 526 of 1971 in O.S. No. 108 of 1961 on the file of the Court of the Subordinate Judge, Guntur. The defendant in the suit is the petitioner and he was the respondent in I. A. 526/71. The petitioner herein questions the order of the learned Subordinate Judge whereby he had appointed one Mr. Shaik Imam as Commissioner to measure and localise items 1 and 2 and T. S. Nos. 1 and 8 to 11 and file a plan. It was also stated in the order that the Commissioner could take the assistance of any surveyor or Engineer if he felt any need.
2. Mr. P. L. Narasimha Sarma, for the petitioner urged, firstly, that the order in question was passed without giving his client an opportunity to file a counter; and secondly, that the order in question is contrary to the provisions of Order 26, Rule 10 (3) of the Code of Civil Procedure and the reported decisions of the Madras High Court in Kunhi Kutti Ali v. Muhammad Haji, 60 Mad LJ 450 == (AIR 1931 Mad 73) and K. S. Ramchar v. K. S. Krishachar, AIR 1949 Mad 612. Mr. Sarma for the petitioner further contended that there was an earlier interlocutory application whereby a Commissioner was appointed to do the very things, which are now required to be done by the newly appointed Commissioner. I think the learned Judge erred in not giving an opportunity to the respondent to file a counter and should not have disposed of I. A. 526/71 on the very day it was filed. If such an opportunity was given, I am certain that in the counter, it would have been brought out that the Court previously appointed a Commissioner for the same purpose and the matter would have been argued. But as things are, I feel that an opportunity was not afforded to the petitioner-defendant to contest the application and no that ground alone I should feel inclined to set aside the order under revision.
'What the Court is for any reason dissatisfied with the proceedings of the Commissioners, it may direct such further inquiry to be made as it shall think fit.'
3. It does not appear from the order under revision that the learned Judge felt that there was any reason for dissatisfaction with the report of the previous Commissioner. If the order disclosed that there was any such dissatisfaction on the part of the Court, I would certainly have been very reluctant to interfere with such an order. It is urged by Sri N. Rajeswara Rao, for the respondent that there would be no great injustice if both the reports are there (I understand that the Commissioner appointed in I. A. 526/71 has filed his report) and the objections of the parties in respect of both the reports could be heard and then the Court could have the choice to act either upon the one o the other report. The course suggested by the learned Advocate for the respondent is fraught with great mischief and this was the very thing that was strongly deprecated in the case reported in 60 Mad LJ 450 = (AIR 1931 Mad 73). The learned Judges (at page 455 of the report) had observed thus:
'We have in the first place to remark that the Lower Court should not have issued two separate commissions to deal with one and the same subject and to treat the reports of both the Commissioners as evidence in the case. The exact circumstances in which he came to issue the second commissions 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 and attention should have been paid only to what was reported by the second Commissioner. Instead of this the learned Subordinate Judge had balanced the report of one Commissioner against that of the other and has expressed a preference for the views of the first Commissioner. In taking this course he has acted with great impropriety and contrary to what is contemplated by O. 26, R. 10 (3) of the Civil Procedure Code.
4. I am bound by the aforesaid observations of the Division Bench.
5. What is quoted above from the decision applied to the facts of this case. I have no hesitation in setting aside the order under revision. The Civil Revision Petition is, therefore, allowed with costs.
6. There is no jurisdiction in the Court to appoint a second Commissioner without superseding or finding that the proceedings or report of the Commissioner earlier appointed is unsatisfactory and it therefore should not form part of the record.
7. Petition allowed.