Appeal under the provisions of the Section pending.Petition for appointment of fresh Commissioner not tenable.

ORDER :- Mr. Sarvabhauman, the learned Counsel for the revision petitioner, contends that it is rather strange that the appellate Court had appointed a Commissioner when there is already in records a report of the Commissioner which was not attacked by the aggrieved appellants before the lower court, and in the circumstances, the order of the lower appellate Court is contrary to law. In this regard, he refers to the decisions reported in T. R. Rajagopala Iyer v. T.R. Ramachandra Iyer. AIR 1969 Mad 144 and Arumugham v. Arumugham, 1979-1 Mad LJ 358.

2. In the instant case, before me, the petition was filed by the appellant in A.S. No. 132 of 1979 under O.29, R.9 and Ss.94 and 151, Civil P.C. praying for appointment of a, Commissioner for local inspection of the suit property. In the affidavit accompanying the petition I.A. No. 324 of 1981, it is inter alia stated on oath by Selvaraj, the second appellant, that a Commissioner was appointed in the trial Court and that he had filed his reports and plans. It is further stated in the affidavit that some features which were material were not actually noted in the report and that the measurements also had to be checked up. In the counter filed by Papayee Ammal, the plaintiff in the suit, it was inter alia contended that the alleged material physical features said to have been omitted to be brought to the notice of the Commissioner have not been disclosed in the petition, that the petition is devoid of merits or any particulars and that, it is only a vague attempt to delay the matters.

3. On these representations by either side in the petition the lower appellate Court had made an order as follows :-

"Of course in the petition the physical features which are said to have been omitted to be noted by the Commissioner are not set out in the affidavit, filed in support of the petition. But that is not ground for denying the relief asked for. The respondent does not have any other objections to this application. Moreover, the appointment of the Commissioner cannot cause any prejudice to the parties. Therefore in such circumstances I hold that it is just and necessary to appoint a Commissioner. Therefore Thiru P. Murugesan, Advocate, is appointed as Commissioner to make the local inspection......."

It is the above order that is now questioned as one which had been made by the lower appellate Court without properly appreciating the scope of O.41, R.27 (1) (b). Civil P.C.

4. The appointment of a Commissioner in appeal is a rarity and is seldom resorted to. Such an appointment is not authorised by O.41, R.27, C.P.C. In the instant application, the reference is to O.26, R.9 and Ss.94 and 151. C.P.C. Order 26, Rule 9, C.P.C. reads as follows -

"In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules."

5. It is relevant in this connection to note the affidavit accompanying the petition for the appointment of a Commissioner once again by the appellate Court at the stage when the appeal is pending does not at all clearly set out the purpose for which the appointment of a Commissioner is required. If really the lower appellate Court felt that a fresh commission has to be issued, it could have done it while disposing of the appeal observing the various circumstances which led to the appointment of a Commissioner to once again visit the suit locality. But without disposing of the appeal, when the lower appellate Court had resorted to appoint a Commissioner for the very same purpose for which an earlier commi