The central legal point established in the judgment is that the power to remit the report to the same commissioner or to set aside the report and issue a second commission can only be exercised under Order XXVI R.10(3) of the Code of Civil Procedure when the Court is dissatisfied with the report already submitted by the commissioner.

1. In a suit for recovery of possession of property after demolishing a wall alleged to have been constructed in the encroached property a commissioner was deputed to measure and identify the property and for demarcating the boundary line. The report submitted by the commissioner was objected to by both parties. The report was then remitted to the commissioner. This process was repeated twice and the trial court again remitted the report to the commissioner since both parties requested for remitting the report to the commissioner for submitting a fresh report in the light of objections they have raised also. Then the commissioner, without making any further local inspection, submitted his fourth report (he has styled it as a 'further report') stating that all the details noted by him in his reports and plans dated 22-2-1980 and 2-2-1981 were correct and that there was 'nothing more to add' or there was 'anything to deviate from the particulars furnished therein'. Thereupon, the defendants-petitioners again filed objections to the report and requested the court by an Interlocutory Application to remit the report to the commissioner with a direction to submit a fresh report taking into account their objections also. The trial court dismissed that application. The defendants challenge that order in this Civil Revision.

2. In the order impugned, the trial court has said:

"Whatever may be that since the plan and report had been remitted we have to see whether there is any justification given by the commissioner for not inspecting the property. It has not been stated by the defendants how this plan and report now submitted by the commissioner is not helpful to decide the dispute in question. In the report dated 6-12-1981 filed by the commissioner he has also explained the reasons for not inspecting the property again stating that there is nothing more to add or to deviate from the earlier report and plan. Because of the reason that the commissioner had not inspected the property again it cannot be said that plan and report have to be remitted. The commissioner had given his reasons for not inspecting the property again. What the defendants had chosen is to blame the commissioner stating that he had expressed his opinion and that he has adopted short cut methods and that there is no excuse for him not to inspect the property again and that he had given a certificate etc. These are not matters to be stated or commented. As I have stated earlier in the report dated 6-12-1981 since the commissioner says that he has nothing more to add and no further inspection is necessary according to him, no purpose will be served in remitting the report and plan. If aggrieved the defendants ought to have taken steps to set aside the report when there is such a report by the commissioner. Having not done so, I would say that this application is now filed only for objection sake and there is no merit in the application filed."

Order XXVI R.9 of the Code of Civil Procedure, for short the Code, reads:

"9. Commissions to make local investigations. 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 mesne profits or damages or annual net profits, the Court may issue a commission to such 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."

Order XXVI R.10 (3) of the Code reads:

"(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."

3. The power to remit the report to the same commissioner or to set aside the report and issue a second commission can only be under R.10(3). R.10 (3) can be