Narayanan Nambiar, J.

In a suit for injunction, O.S. No. 892 of 1987 of the Munsiffs Court, Kozhikodde filed by the Revision Petitioners, an application for issue of a commission was filed by them which was allowed and Sri. E.N. Gopalakrishnan, an advocate practising at Kozhikode, was appointed as Commissioner. He inspected the properties involved in the suit and filed a report. Thereafter, at the instance of the contesting defendants, the report was remitted to the same Commissioner with a direction to file a further report.

2. Defendants 3 to 6 filed LA. No. 4310 of 1990 with a prayer to set aside the Commissioner's report and to appoint another commissioner. The application was allowed. Appointment of a fresh Commissioner was sought for as the former Commissioner, Sri. E.A. Gopalakrishnan ceased to practice at Kozhikode.

3. Parties went to trial. Advocate Sri. E.N. Gopalakrishnan who was the first Commissioner was summoned by the plaintiffs to be examined as a witness on their side. LA. No. 4425 of 1993 was filed by the plaintiffs for permission to examine the said Commissioner. The application was dismissed on 13.10.1993 whereupon the revision petitioners filed CRP No. 1942 of 1993 against the order in I. A. No. 4425 of 1993. This Court as per Order dated 8.2.1995 allowed the revision. The order in CRP No. 1942 of 1993 is extracted hereunder:

"By I. A. 4425 of 1993 filed under 0.16 R.1 CPC, the petitioner sought to examine one Gopalakrishnan as his witness. The application was dismissed by the impugned order. It appears the Court below considered the matter from a wrong angle, and the legal provision referred seems to be irrelevant. Indeed, Gopalakrishnan was formerly the Commissioner appointed by the Court, and he had given a report, which was subsequently set aside. Another Commissioner was appointed and a fresh report had been obtained. Indeed Gopalakrishnan cannot give evidence as Commissioner since his report had already been set aside. But then, he was not sought to be summoned as Commissioner but only as a witness to testify to certain facts and this is permissible under O.16 Rr.1 and 2 CPC. The Court below is seen to have misconstrued the scope of the petition, the dismissal of which by the impugned order is unsustainable, and it is hence set aside. Petitioner shall be permitted to summon Gopalakrishnan as a witness as prayed for, subject to the observations made above.

The C.R.P. is disposed of as above."

It is clear from the order that Sri. Gopalakrishnan was permitted to be examined as a witness on the side of the plaintiffs. Pursuant to the directions of this Court, Sri.Gopalakrishnan was summoned as a witness by the plaintiffs and while he was in the witness box and giving evidence with reference to the matters mentioned in his report, objection was taken by the respondents and the Court below as per the impugned order dated 16.10.1995 held that the witness (Sri. Gopalakrishnan) will not be permitted to testify touching any of the matters mentioned by him in his report which he filed before the Court as Advocate Commissioner and which has been already set aside.

4. Counsel for the revision petitioners argued that the report submitted by Sri. Gopalakrishnan was set aside only due to the reason that he was not available to file a fresh report when his report was remitted back to him and so while he was being examined as a witness, there is no legal impediment in referring to the report to refresh his memory. According to counsel, Ss.159 & 160 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the act) permits such a course. He also argued that even if the document is inadmissible, it could be made use of for collateral purposes.

5. On the other hand, counsel for the respondents contended that the revision itself is not maintainable and that the document which has been set aside cannot be made use of for any purpose. In the light of the rival contentions, it has to be decided whether the revision c