The court clarified the jurisdiction of the trial court to direct the same Commissioner to remedy the defects in the report if found to be deficient on any point, as per the provisions of the Code of Civil Procedure.

1. This is a civil revision petition filed by the defendant in a suit for injunction. The plaintiff is a building tenant of the defendant. The plaintiff's case is that when the tenant-plaintiff wanted to install certain machineries in the tenanted premises the defendant attempted to cause some obstructions and that necessitated the filing of the suit.

2. The contention of the defendant is that the suit premises was never in the occupation of the plaintiff and that he is attempting to trespass into the suit premises and to facilitate the trespass into the suit premises he has filed the suit. The defendant further contended that the plaintiff is in occupation of only a chayippu and that be is not in occupation of the shed in question.

3. In order to establish his case, the defendant wanted a commission to be appointed by the court for local inspection. The court appointed a commission and the Commissioner has filed a report on 23-11-1984. The plaintiff filed objection to the Commissioner's report. No objection has been filed by the defendant to the Commissioner's report.

4. The court passed an order of temporary injunction against the defendant on 14-3-1985. There was an appeal and a revision against the order passed by the trial court and the appellate court at the instance of the defendant. The defendant was not successful in those proceedings. Subsequently the defendant has filed I. A. 132 of 1986 for remitting the commission order to the same Commissioner for inspecting the property again to note certain additional matters which according to the revision petitioner the Commissioner has omitted to note in his report even though the revision petitioner wanted the Commissioner to note those facts. Naturally the plaintiff opposed the application. He submitted that there is absolutely no necessity for sending the Commissioner again for a local inspection and that the purpose and intention of the defendant in filing the application is only to protract the trial of the suit. The trial court accepted what the plaintiff said and held that there is no merit in the application. The trial court held that the petition has been filed after considerable delay in the matter. The court has catalogued the dates relevant in the matter to show that there is considerable delay in requesting the court to direct the Commissioner to make a second inspection to note further facts which the defendant wanted the commissioner to note. The court passed an order dismissing the application. This order is challenged in this C.R.P.

5. The counsel for the petitioner submitted that the court below in fact did not consider his application on merits. He submits that though in his application he has spotlighted his grievances, the court below did not even look into it. The court below was carried away by certain events that happened after the filing of the report and after the order of temporary injunction. There is force in this submission. The application ought to have been considered on merits. The question is whether the defendant, in the light of the report and circumstances revealed in the case is right in requesting the court to send the Commissioner again for noting certain things, which according to the revision petitioner, the commission has omitted to note in his report. The revision petitioner has stated specifically three items of things to be noted by the Commissioner, and were omitted to be noted by the Commissioner.

6. The counsel for the respondent submitted that the trial court has got jurisdiction to remit the Commissioner's report or to send a second commission for local inspection only in the event of setting aside the earlier commission report and without setting aside the commission report the court will not get any jurisdiction to issue a second commission. He further submits that the revision petitioner did not object to the commission report and never wanted to set aside the report. The learned counsel refers me to the decision r