1. This petition by the plaintiff is directed against an order of the Second Additional District Judge, Coimbatore, appointing a Commissioner for local inspection. The suit was one for specific performance and for mesne profits which was eventually decreed after the litigation had seen several courts, including the Supreme Court in the enquiry for mesne profits the trial Court found that a sum of Rs. 5,000/- per annum could be fixed as mense profits. It appears 14 acres of single crop wet lands, 3 acres of cocoanut grove and 58 acres of dry lands are the properties involved in the suit. In the Lower Appellate Court in support of the application for Commissioner it was stated that it was necessary to have the properties inspected, because no attention has been paid in the trial Court with reference to the alleged reclamation of jungle lands into cultivable lands and that in such a case, income from such land should be excluded and there were also areas which were rocky and could not be cultivated and this too should be taken into account. All these facts, according to the petitioner in the court below, could be proved only by appointment of a Commissioner through his report. On this ground it was stated in the court below that the decree granted by the trial court for mesne profits could not be sustained. The lower appellate court has devoted its entire order to a consideration of the scope of Order XLI Rule 27 C. P. Code and a decision of the Allahabad High Court and of the Supreme Court, and being of opinion that the appellate court had the power, he ordered appointment of a Commissioner.
2. it is rather surprising that the Second Additional District Judge did not examine the application for appointment of a Commissioner on its merits whether it was required in the interests of justice. I may observe that appointment of a Commissioner in the appeal is a rarity and is seldom resorted to. in my view, such an appointment is not authorised by Rule 27 of Order XLI. That rule relates to additional evidence and the language of Rule 27 (1) (b) does not lend itself to a construction that the report of a commissioner to be appointed and submitted in the appellate stage is regarded as additional evidence for purposes of that rule. it is true that Section 107(2) C. P. Code gives the Appellate Court the same powers and the same duties as nearly as nay be as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted in them. Wide as the phraseology of this sub-section may appear, I am inclined to think that when Sub-section (1) and the matters mentioned therein are kept in view, the power of the Appellate Court under Sub-section (2) should be understood not as widely as it may prima facie appear to justify. in any case, I think assuming that Section 107(2) authorises the appellate Court to appoint a Commissioner for inspection, that is a power which should be very sparingly used and only in the interests of justice. The normal course which the Appellate Court in such cases should adopt is to allow the appeal itself from the decree for mesne profits and then to direct the trial Court to appoint a Commissioner if it thought fit on the merits, consider the Commissioner's report and then come to the conclusion on the quantum of mesne profits. The Second Additional District Judge in this case may well have adopted that course, but only on his judgment of the merits and the justice of the case.
3. As I said, the Lower Appellate Court seems to have taken it for granted that the application for appointment of a Commissioner at the appellate stage should be granted as a matter of course, which is not the case. The order of the Lower Appellate Court amounts to this that because the appellate Court possesses the power, according to it, therefore it made an order for appointment of a Commissioner. Clearly that view is wrong. A Commissioner, even if there is power, can be appointed only if it is justified on the merits.
4. The order of the Court below is set aside. It is, however, open to the Lower Appellate Court in disposing of the appeal to see whether the ends of justice have suffered at the trial stage because proper investigation had not been made as to the physical features and the other features pointed out by the defendant and whether the defendant had been diligent in prosecuting his case in the trial Court, and if it is satisfied on such an examination, to set aside the decree for mesne profits and remit the matter to the trial Court for fresh disposal. This observation is not to be understood by the Lower Appellate Court as an invitation to it to allow the appeal, which I have no doubt, the Court below will consider on its own merits.
5. The petition is allowed in thoseterms. No costs.