The main legal point established in the judgment is that a second commission can only be issued under Order XXVI R.10(3) if the court is dissatisfied with the first commissioner's proceedings and there are valid grounds for issuing a second commission. Additionally, if the report of the first commissioner is found unsatisfactory, it must be set aside.

1. What is the condition precedent for the issue of a second commission under Order XXVI R.10(3) of the Code of Civil Procedure? This is the point that arises for consideration in this Civil Revision. The short facts of the case shorn of unnecessary details are: The 1st respondent started a granite crushing unit in the immediate vicinity of the petitioner's house. Then the petitioner filed the suit for permanent injunction restraining respondents 1 and 2 from working the machine alleging unbearable nuisance. An ex parte commission was also taken. On the basis of the commission report also the trial court granted a temporary injunction. The 1st respondent filed objections to the commission report and prayed for the setting aside of the report and the issue of a second commission to submit a report regarding the nuisance. The court did not set aside the commission report, but ordered a second commission. The challenge in this Civil Revision is against the above order of the trial court.

2. The impugned order reads:

"Heard. I feel that no grounds are made out to set aside the commissioner's report. I feel that in order to report about the objections raised in the above petition and to report about the working of the machinery etc. a new commission has to be issued..."

Rule 10(3) of Order XXVI of the Code of Civil Procedure 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."

The Court can issue a second commission only under Order XXVI R.10(3) of the Code. As per the above provision, the Court should, for any reason, be dissatisfied with the proceedings of the commissioner already deputed. The dissatisfaction can be before the submission of the report or after that. No question of setting aside the report arises if the Court was dissatisfied about the work of the commissioner and issued a second commission before he submitted the report. But if a second commission is to be issued after the commissioner already deputed submitted his report can it be done without setting aside the report. Proceedings of the commissioner cannot but include the report of the commissioner if a report has been submitted. If the Court is dissatisfied about what the commissioner did, can the report be salvaged simply because the report is not specifically made mention of in R.10(3). Not only that, the Court gets jurisdiction to issue a second commission only if the Court for any reason is dissatisfied with the work of the first commissioner. In this case, not only that the Court did not express any dissatisfaction about the work of the first commissioner it was also held that no grounds are made out to set aside his report. The Court has not even postponed its decision on the question of setting aside the commission report. When the second commission report is also submitted, the Court will have to accept one report and disregard the other. Going by the scheme of the relevant provisions of the Code, this is not something which is contemplated. Simply because R.10(3) does not provide for the setting aside of the first commission report, cannot be said that a second commission can be issued without setting aside the first commission report. If, for example, the Court feels some more details are to be gathered, the Court can depute the same commissioner for the same purpose and in that case, no setting aside of the report already submitted is necessary. At any rate, the Court has no jurisdiction to issue a second commission when it has not only not expressed any dissatisfaction about the work of the first commissioner but has refused to set aside his report.

3. In Ramachar v. Krishnachar (AIR. 1949 Mad, 612) Subba Rao J. (as be then was) has held:

"Order appointing a second commissioner, without assigning any reasons why the report of the previous commissioner is ignored, is not only contrary to the provisions of 0.26, R.10(3) but is to