The main legal point established in the judgment is that the report of the Commissioner shall be evidence in the suit, and the court's power to order further enquiry is limited by the legal provisions of 0.26 R.10(3) and 0.26 R.9.

1. "Manohar Clinic" belonging to the petitioner was originally classified as a consumer of electrical energy, appropriate to class I(c) of the Electricity Board's Tariff. Some time after an X-ray unit was installed in the clinic, the Officers of the Board re-classified it as Class IV(a). It appears that the petitioner filed some complaint before the Chief Electrical Inspector, and the matter was being got examined through the Electrical Inspector, Calicut. In the meanwhile, the petitioner filed OS. 641/79 before the Munsiff's Court of Kozhikode for a declaration that the demand for payment of electrical charges, with retrospective effect, on the basis of the reclassification, was illegal and of no effect. In I.A. No. 1302 of 1980 the petitioner wanted the court to appoint the Electrical Inspector, Calicut as a Commissioner in the suit for reporting about correct classification and the tariff applicable to his electrical connection, as also about the "voltage, connected load, horse power etc." The application was opposed by the Officials of the Electricity Board, but the court apparently thought that the dispute involved something in respect of which a report from an expert would be useful. "Evidence should not be shut out", said the Court, and the I.A.was accordingly allowed.

2. The Electrical Inspector submitted his report to the court on 24-7-82, stating that though the parties had failed to make available some documents which would have been of assistance in making the required report, despite notice, a few relevant papers had in the meanwhile been obtained in connection with the enquiry ordered by the Chief Electrical Inspector, and that he was in a position to report on their basis that the connection was correctly classified as IV(a). According to the Inspector, Class I (c) was appropriate to small consumers with a connected load not exceeding "3 H.P. corresponding to 3K.VA"; but the X-ray unit in the petitioner's hospital had a transformer, an accessory to the unit, whose rated capacity itself was 20 KVA.

3. The report was thus against the petitioner. It is not clear whether any objection was filed to this report or whether the Commissioner was examined; but on 16-8-82 the petitioner filed another I. A. 2592/82 praying that the Inspector's report be set aside and that an experienced Advocate be appointed as a new Commissioner to report on the same matters. The court below dismissed the said I.A. by order dated 17-9-82, and hence the present revision.

4. The I. A. was dismissed, so far I could see, for four reasons:

(i) in Hydrose v. Govindankutty (1981 KLT 360) this Court had held that 0.26 R.10(3) was insufficient to clothe the court with power to set aside the report of a Commissioner appointed under R.9; the Court could only call for a further report from the same commissioner, or at the most, appoint a fresh commissioner whose report would also form part of the evidence in the case, under R.10(2), There was therefore no question of granting the request for setting aside the Inspector's report. And there was no request at all to remit the report to him for further enquiry;

(ii) on the merits also, there were no grounds to set aside the report because despite grant of sufficient opportunities by the Inspector, and even directions from the Court, the plaintiff had failed to submit all the necessary records;

(iii)there was no reason to assume that an Advocate Commissioner would be able to submit a better report on the subject, than the Electrical Inspector, and

(iv) the points the petitioner wanted to prove could be proved by other evidence.

5. Counsel for the petitioner submits that the view taken in Hydrose (by me) has not met with the approval of a subsequent Division Bench decision of this Court, reported in Swami Premananda v. Swami Yogananda 1985 KLT. 144: (1985 KLJ. 225), and that that itself will be sufficient ground to set aside the order of the Munsiff herein. I cannot agree, because even if reason No. (i