The court has the discretion to appoint a commissioner under O.26, R.9, C.P.C. and the appointment of a second commissioner is not automatic.

The above revision has been filed by the 1st defendant in the suit pending trial in O.S. No.128/86 on the file of the District Munsif Court, Aruppukkottai against the order dt. 3-8-94 in I. A. No. 448/94, where under the Court below has chosen to dismiss the application filed by the petitioner under O.26, R.9, C.P.C. praying for a direction to appoint afresh advocate-commissioner to inspect the suit schedule property and send a fresh report and further plan in the light of the document now produced by the petitioners, if need be after measuring the property.

2. Heard the learned counsel appearing on either side. There is no dispute over the position that the suit is part heard before the trial Court and equally there is no controversy over the position that at the instance of the petitioner, an advocate-commissioner had been appointed and he, on inspection had submitted a report along with plan. The only controversy is as to whether, the present application made at the time of trial, could be countenanced and that too, for the reasons urged by the petitioner in the Court below. The trial judge was of the view that since eight years have lapsed, after the submission of the previous report by the commissioner along with the plan, and the suit is actually being tried, there is no justification to allow the claim of the petitioner at this stage and it will be difficult to observe the condition of the property at this belated time by the commissioner to be now appointed. Aggrieved thereby, the present revision has been filed.

The learned counsel for the petitioner contended that the Court below has committed a serious error in rejecting the application filed by the petitioner and the trial Court has failed to see that even the earlier commissioner has stated that the petitioner has not produced relevant documents, which according to the petitioner was at the relevant point of time, before the Director of Technical Education and the petitioner was able to secure them only recently, which necessitated him to file the above applications, and this aspect of the matter has not only been omitted to be considered by the trial Court but the Court below failed to see that the interest of justice really warrant appointment of a second commissioner to reinspect the property to submit a fresh report along with the plan on perusing the document.

3. The learned counsel for the respondent vehemently objects to the plea taken on behalf of the petitioner and contend that the order of the learned trial judge is quite in accordance with the law and there was no justification whatsoever for the petitioner to seek for the appointment of an commissioner afresh at this stage of the proceedings, particularly after such a long time as noticed by the trial Court.

4. I have heard both the learned counsel appearing on either side. Both the learned counsel have placed certain decisions for my consideration.

5. The decision to which a reference can be made is K. Viswanathan v. D. Shanmugham Mudaliar, (1986) 2 Mad L J 319, rendered by the then learned Chief Justice M.N. Chandurkar. The learned Chief Justice while dealing with the evidentiary value of the commissioner's report and the fact that certain physical features have not been properly noted by the commissioner, discouraged the habit of Courts directing a further enquiry by the commissioner, scrapping the first report of the commissioner. It was held that the mere fact that the commissioner has failed to note certain features which according to the defendant, were important does not mean that the whole report should be scrapped and an adequate provision to safeguard the interest of the parties concerned is made in sub-rule (3) of Rule 10, Order 26, C.P.C.

6. In K. Kandaswamy v. K.C. Ramaswamy, (1988) 102 Mad LW 440, Sethiadev, J. held that the appointment of a second commissioner, even with the consent of previous commissioner after filing of the report of the previous commissioner, was not legal and