A second Commissioner can only be appointed if the Court is dissatisfied with the proceedings and report of the earlier Commissioner.

This revision is by the petitioner in I.A. No. 3879 of 1994 in O.S. No. 701 of 1992, on the file of the District Munsif's Court, Tindivanam.

2. The suit is one for declaration of title and recovery of possession of the schedule mentioned property, in which, according to the petitioner/plaintiff, the respondent, defendant has committed trespass. During pre-trial stage, petitioner filed an application for the issue of a Commissioner, and the same was allowed.

3. An Advocate-Commissioner visited the Property. It is said that after expiry of a long time, he filed the report dated 1-11-1993. The petitioner filed objections to the report on 7-1-1994, and the same is pending consideration by the Court below. In the meanwhile, he filed I.A. 3879 of 1994 on 18-11-1994 seeking appointment of another Commissioner. An objection was raised by the respondent stating that when the earlier report is pending consideration, a second Commissioner cannot be deputed and even if there is any defect in the report of the Commissioner, the remedy of the petitioner is only to have a supplementary report by issuing the warrant to the same Commissioner.

4. By the impugned order, Court below dismissed the petition. The said order is challenged in this revision.

5. At the time of admission, notice of motion was ordered and the respondent has also entered appearance.

6. By consent of learned counsel of both parties, the revision itself was heard.

7. Before considering the merits of this case, it is better to know the position of law regarding the issue of Commission, and how far the Court will be justified in issuing a second Commission.

8. Order 26, Rule 10 of the Code of Civil Procedure deals with the procedure for issuance of Commission. it says that the report filed by the Commissioner shall be evidence in the case and that the same shall form part of the records. It further allows the parties to examine the Commissioner personally in open Court, touching the matters regarding which reference is made in the report or in respect of matters referred to him or in respect of those matters which were the subject-matter of investigation. Sub-rule (3) of R.10, O.26, C.P.C. is very important. It reads thus :-

"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." *

9. It is on the basis of sub-rule (3) of Rule 10 to Order 26, C.P.C., objections to the Commissioner's report are considered, and the Court has to pass an order as to whether it is satisfied with the proceedings of the Commissioner or not. The question of issuing a second Commission is also based on the satisfaction entered by Court. Is the Court competent to issue a second Commission without passing any order under sub-rule (3) of Rule 10, Order 26, C.P.C. This question has been considered in various decisions of this Court as well as by other High Courts. In one of the earliest decisions of this Court reported in 1922 AIR(Madras) 219 (Thottamma v. C.S. Subramaniyyam), this Court has held thus :-

"The duty of the Court, whenever a Commissioner's report is objected to, is to hear objections in open Court and to decide with the aid of such evidence as it might take if the valuation should be varied and in what direction; but if a Commissioner appointed under O. 26, Civil Procedure Code has so totally misconceived his duties as to render his report and valuation useless as a basis for decision, his report should be superseded and a new Commissioner appointed. A report which is once superseded should not be used after its supersession as a basis for valuation. The practice of appointing successive commissioners whenever objections are taken to the reports should be condemned." *

10. In 1929 AIR(Madras) 661 (Ambi v. Kunhikavamma), this Court has held thus (at page 663) ;-

"Civil Procedure Code does not contemplate the issue of a succession of commissions to value improvements all covering the same g