ORDER :

A. Muhamed Mustaque, J.

1. This original petition has been placed before us based on a reference order of the learned single Judge. The reference was necessitated as the learned Single Judge observed that a coordinate Bench of this Court in Francis Assissi v. Sr.Breesiya and Others [2017 (1) KLT 1041] held that a commission report can only be set aside or varied under Sub-Rule (2) of Rule 14 of Order XXVI of the Code of Civil Procedure (for short, the Code). This appears to have created a considerable amount of confusion in the District Judiciary in regard to the procedure to be adopted regarding setting aside or remitting the commission report on such application being made before the court.

2. Another learned Single Judge in a recent judgment in Yudathadevus v. Joseph [2021 (5) KHC 668] opined that the judgment in Francis Assissi's case (supra) is per incuriam and it is not a binding precedent. The learned Single Judge after adverting to all decisions in this regard, was of the firm view that the court has the necessary power to set aside the commission report or remit the commission report. The learned Single Judge also placed reliance on the earlier Division Bench judgment, prior to the judgment in Francis Assissi's case (supra) to arrive at the conclusion as above.

3. Order XXVI of the Code broadly refers to commissions. It further classifies commissions under different heads based on the purpose such as the Commission to examine witnesses, the commission for local investigation, the commission for scientific investigation, the commission for performance of a ministerial act, the commission for the sale of movable property and the commission to examine or adjust accounts. A residuary provision in the nature of general provision is also incorporated under Order XXVI of the Code in regard to the expenses of the commission to be paid into court, powers of the Commissioner, questions objected to before the Commissioner and attendance and examination of witnesses before the Commissioner. We, at the outset, note that the classification of issuance of commission under different heads is necessary to understand the legal issue involved. If the classification is not strictly adhered to, it may create confusion as was noted in the reference order.

4. We have gone through the judgments in Francis Assissi's case (supra). That was a case in which a Commissioner was deputed for examining the witnesses. The provisions relating to the examination of the witnesses are under Order XXVI Rules 1 to 8 of the Code. Having gone through the above provisions, we do not find any provisions enabling the court to set aside or conduct further enquiry or remit the commission report. The issue directly involved in that case was in regard to the procedure to be followed by the Commissioner to examine the witnesses. The ratio decidendi of an earlier decision will have to be ascertained to find out whether it is a binding precedent or not. The judgment in Francis Assissi's case (supra) was in the context of the Commissioner which was deputed to examine a witness. Therefore, we are of the opinion that the above judgment would hold the field, in regard to examination of witness alone unless a different opinion is taken by a larger bench.

5. However, we note the observations in Francis Assissi's case (supra) in paragraph 41. According to us, it will not constitute a binding precedent for the reason that it was not an issue that had arisen in that case for consideration. It can only be treated as an observation and has no precedential value. It is appropriate to refer to paragraph 41:

“The question of setting aside of earlier commission report before issuing a second commission would arise only in case of commission issued for effecting partition. In all other cases there is no necessity, requirement or need to set side the earlier report, before issuing a second Commission either for the very same purpose or for some other purposes. No such mandate is inclu