1. Mr. Sarvabhauman the learned counsel for the revision petitioner, contends that it is rather strange that the appellate Court had appointed a Commissioner when there is already in records a report of the Commissioner which was not attacked by the aggrieved appellants before the lower court, and in the circumstances, the order of the lower appellate Court is contrary to law. In this regard, he refers to the decisions reported in T. R. Rajagopala Iyer v. T. R. Ramachandra Iyer. and Arumugham v. Arumugham, 1979-1 Mad LJ 358.
2. In the instant case, before me, the petition was filed by the appellant in A. S. No. 132 of 1979 under O. 29. R. 9 and Ss. 94 and
151. Civil P.C. praying for appointment of a Commissioner for local inspection of the suit property. In the affidavit accompanying the petition I.A. No. 324 of 1981 it is inter alia stated on oath by Selvaraj, the second appellant, that a Commissioner was appointed in the trial Court and that he had filed his reports and plans. It is further stated in the affidavit that some features which were material were not actually noted in the report and that the measurements also had to be checked up. In the counter filed by Papayee Ammal, the plaintiff in the suit, it was inter alia contended that the alleged material physical features said to have been omitted to be brought to the notice of the Commissioner have not been disclosed in the petition, that the petition is devoid of merits or any particulars and that it is only a vague attempt to delay the matters.
3. On these representations by either side in the petition the lower appellate Court had made an order as follows:-
"Of course in the petition the physical features which are said to have been omitted to be noted by the Commissioner are not set out in the affidavit filed in support of the petition. But that is not ground for denying the relief asked for. The respondent does not have any other objections to this application. Moreover, the appointment of the Commissioner cannot cause any prejudice to the parties. Therefore in such circumstances I hold that it is just and necessary to appoint a Commissioner. Therefore Thiru P. Murugesan, Advocate, is appointed as Commissioner to make the local inspection........."
It is the above order that is now questioned as one which had been made by the lower appellate Court without properly appreciating the scope of O. 41. R. 27 (1) (b). Civil P.C.
4. The appointment of a Commissioner in appeal is a rarity and is seldom resorted to. Such an appointment is not authorised by O. 41. R.
27. C.P.C. In the instant application, the reference is to O. 26. R. 9 and Ss. 94 and 151. C.P.C. Order 26. Rule 9. C.P.C. reads as follows-
"In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or of ascertaining the market value of any property or the amount of any meson profits or damages or annual net profits, the court may issue a commission
to such a person as it thinks fit directing him to make such investigation and to report thereon to the court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules."
5. It is relevant in this connection to note the affidavit accompanying the petition for the appointment of a Commissioner once again by the appellate Court at the stage when the appeal is pending does not at all clearly set out the purpose for which the appointment of a Commissioner is required. If really the lower appellate Court felt that a fresh commission has to be issued, it could have done it while disposing of the appeal observing the various circumstances which led to the appointment of a Commissioner to once again visit the suit locality. But without disposing of the appeal, when the lower appellate Court had resorted to appoint a Commissioner for the very same purpose for which an earlier commission warrant had been issued and a report is actually in the case records, this Court has no other alternative but to say that the said order is not in accordance with the provisions of O. 41. R. 27. Civil P.C.
6. In my view, such appointment is not authorised by R. 27 of O.41. The rule relates to additional evidence and the language of R. 27 (1) (b) does not lend itself to a construction that a warrant of commission be issued at the appellate stage. If really the appellants before the lower appellate Court were aggrieved during the trial stage itself, when the report was filed by the Commissioner, objections ought to have been submitted before the trial Court itself. The physical features which were not at that stage, namely, at the trial stage, cannot be said to have come into existence at the time of appeal. That is not actually the case put forward in the affidavit that has been filed accompanying the petition for appointment of the Commissioner.
7. It is true that S. 107(2), Civil P.C. gives the appellate Court the same powers and the same duties as nearly as may be as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted in them.
8. Mr. Sivasubramaniam, learned counsel for the respondents herein submits that there is no prohibition available in the procedural law of the land which ties the hands of the appellate Court thereby denying the opportunity of appointing another Commissioner in an application to go into the question of the existence or otherwise of the physical features of the property in question. In the instant case , he submits it is only by exercising the discretion vested with the lower appellate Court under S. 151. Civil P. C. the lower appellate Court had passed an order and when such a discretion had been exercised judicially, the revisional Court cannot go into the said matter and say that the said discretion had been exercised arbitrarily or capriciously. This Court does realise that there is some force in the arguments advanced by Mr. Sivasubramaniam. It is relevant in this connection to note that no objection seems to have been raised at all during the stage of the trial for the Commissioner's report. What is more, the appeal itself had been pending and when the Commissioner's report had been accepted and a judgment had been rendered by the trial Court and that was the subject matter of the appeal, an application has been filed for the appointment of a Commissioner on a bald allegation that the physical features of the property in question had not been gone into, and that allegation had been stoutly denied in the counter that had been filed into the said petition. When the lower appellate Court had passed an order during the stage during the stage of the pendency of the appeal before it and when it is common ground that there had been no objection filed before the trial Court for the report of the Commissioner who was appointed for the very same purpose for which an order enabling a new Commissioner has been passed by the lower appellate Court by way of an order is one which is certainly not in the interest of justice, nor is one which may be recognised by the procedural law of the land either under O. 41. R. 27. C.P.C. or under O. 26. R. 9. C.P.C. read with S.
9. In the instant case, the Commissioner's report is already in existence and it is common ground that it is for the very same reason and subject-matter another Commissioner is required to be appointed by the respondent herein. In the absence of any personal allegation against the Commissioner non-availability of proper representation before the Commissioner because of the failure to give notice by the Commissioner or other such features which may vitiate the very procedure that had been adopted by the Commissioner, certainly, the contention raised on behalf of the respondant herein cannot be upheld. Under the circumstances, the civil revision petition is liable to be allowed, and is accordingly allowed with costs. The lower appellate Court is directed to dispose of the appeal as early as possible as the appeal is of the year 1979.
10. Petition allowed.