Appointment of second Advocate commissioner held not proper.

The revision petitioner is the defendant in O.S.No.140 of 2002 on the file of the Additional District Munsif Court, Namakkal. The revision is filed against the order dated 13.12.2002 made in I.A.No.325 of 2002 in I.A.No.213 of 2002.

2. I.A.No.325 of 2002 was filed to scrap the report and the rough plan of the first advocate-commissioner filed in I.A.No.213 of 2002. The trial Court after enquiry dismissed the petition.

3. The respondents/plaintiffs filed the suit on 12.2.2002 for declaration that the defendant is not entitled for any irrigation channel and also for pathway in the suit lands at Pudukottai village, Namakkal District and for consequential permanent injunction. The suit was contested by filing written statement on 26.6.2002. The plaintiffs also filed I.A.No.213 of 2002 along with the suit, in which, advocate-commissioner was appointed, who after inspecting the suit properties on 14.2.2002 filed report and rough plan. At the time of inspection by the first advocate-commissioner, the defendant was present near the suit properties and only after informing him, the first advocate-commissioner inspected the suit properties. The defendant has filed objection to the report of the first advocate-commissioner on 7.3.2002 and he also filed I.A.No.324 of 2002 stating that the report and rough plan of the first advocate-commissioner is incorrect in material features and seeking local inspection of the suit properties by the Court, in which, it appears, another advocate-commissioner was appointed without setting aside the report of the earlier advocate commissioner. The second advocate-commissioner appointed in I.A.No.324 of 2002, after inspecting the suit properties has filed report along with rough plan. Thereafter, the defendant has filed I.A.No.325 of 2002 to scrap the rough plan and report of the first advocate-commissioner appointed at the instance of the plaintiffs in I.A.No.213 of 2002.

4. The trial Court considering the objections raised by the plaintiffs that the report and rough plan filed by the first advocate-commissioner appointed at the instance of the plaintiffs cannot be scrapped, in that the physical features of the suit properties that existed at the time of filing the suit will differ and accordingly dismissed the petition. The order is now challenged in this revision.

5. The learned counsel for the revision petitioner/defendant mainly argued that inasmuch as the second advocate-commissioner appointed at the instance of the Court in I.A.No.324 of 2002 after inspecting the suit properties has filed his report and rough plan, the report and rough plan of the first advocate-commissioner appointed at the instance of the plaintiffs are to be scrapped. The learned counsel also submitted that though I.A.No.324 of 2002 was filed for local inspection by Court, the appointment of second advocate-commissioner by the Court is proper. In support of such contention, the learned counsel has relied on the following decisions:-

(1) Vemba Gounder – vs. Pooncholai Gounder reported in 1996(1) M.L.J. 426, in which, this Court held that the Court if satisfied that the report is not satisfactory need not insist on filing application to appoint second advocate-commissioner.

(2) R.Viswanathan – vs. - P.Shanmugham and another reported in 1985(I) M.L.J. 254, in which, this Court held that the trial Court has got power under Order 26 Rule 10(3) C.P.C. for appointment of fresh advocate-commissioner on recording finding that the proceedings and the report of the earlier commission are not satisfactory.

6. Learned counsel for the respondents/plaintiffs submitted that the appointment of second advocate-commissioner by the trial Court in I.A.No.324 of 2002, which was filed for local inspection by the Court itself is not proper without recording any finding that the plan and the report of the first advocate-commissioner are not satisfactory and without setting aside the first commission appointed at the instance of the plaintiffs, w