( 1 ) DESPITE service of notice, none appears for the respondents,

( 2 ) HOWEVER, since the legal position is settled, I deem it fit to dispose of the present civil revision petition at the admission stage itself.

( 3 ) HEARD the learned Counsel for the petitioner.

( 4 ) THIS civil revision petition is directed against the order, dated 5. 8. 2002, in I. A. No. 1272 of 2002 in O. S. No. 1307 of 1999 on the file of Principal Junior Civil Judge, kurnool.

( 5 ) THE petitioner is the defendant and the respondent is the plaintiff. The suit is filed for permanent injunction.

( 6 ) FOR the sake of convenience, the parties will be referred to as arrayed in the suit.

( 7 ) THE plaintiff undisputedly filed I. A. No. 1861 of 2000 seeking appointment of a commissioner, the purpose of which is not very relevant. The Commissioner submitted his report in the month of april, 2001. Subsequently, both the parties adduced evidence, both oral and documentary. The matter was being posted for arguments since July, 2002. At that stage, the present la. No. 1272 of 2002 had been filed by the plaintiff seeking redirection to the advocate-Commissioner and surveyor appointed in I. A. No. 1861 of 2000 to inspect the suit site and to file fresh report or to scrap the report filed by them, and appointment of a fresh Commissioner for the same purpose. The said I. A. No. 1272 of 2002 was allowed on the ground that there were certain discrepancies in the Commissioner s report and accordingly, the Trial Court redirected the earlier Commissioner and the surveyor who were appointed in I. A. No. 1861 of 2000, to re-inspect the suit site and to file a fresh report. Hence, the present revision.

( 8 ) ON a perusal of the findings in the impugned order, it is clear that the Trial court allowed the said I. A. by relying on m. Chenna Venkata Reddy and others v. A. P. Housing Board, Gruhakalpa, 1999 (5) ald 33 = 1999 (2) LS 359, wherein it was observed that:"until Court is dissatisfied with proceedings and report of Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less scrapping of earlier report as a whole and appoint a fresh commission -No finding by the Court below about satisfactory procedure adopted by the Commissioner in filing report and also about correctness of report - allowing application by Trial Court in appointing second Commissioner - Not justified. "

( 9 ) AT the out set I am of the considered view that the Court below was in serious error in allowing the present I. A. and it has not strictly followed the observations of this Court in the citation referred to supra.

( 10 ) ORDER 26, Rule 10 of the Code of civil Procedure is the relevant provision, which deals with the appointment of commissioner, and it reads as follows: order 26, Rule 10 (1) The Commissioner, after such local inspection as he deems the necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. Report and depositions to be evidence in suit- (2): The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation; commissioner may be examined in person - (3) 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.

( 11 ) FROM the above provision, it is clear that the report of the Commissioner shall be a piece of evidence in the suit and the same shall form part of the record. But, the Court, however, either on its own or at the insta