Commission cannot be issued for the second time for same purpose.

S.S. SUBRAMANI, J.

( 1 ) RESPONDENT in a. S. No. 27 of 1999 on the file of Subordinate judges Court, Namakkal is the revision petitioner herein.

( 2 ) THE facts that are necessary for disposal of this revision could be summarised thus.-petitioner herein is plaintiff, who filed the suit o. S. No. 263 of 1988 on the file of District munsifs Court, Namakkal, for permanent prohibitory injunction restraining defendant from interfering in his possession of the property and also to restrain defendant from blasting rocks in their property, which is injurious to plaintiffs enjoyment of his property and for consequently reliefs.

( 3 ) THE suit was seriously opposed by respondent herein and the Trial Court took oral and documentary evidence. It pronounced judgment decreeing the suit on 29. 1. 1999. Before pronouncing judgment, Trial Court has also taken into consideration the report of the commissioner, which are marked as Exs. C-1 and C-2. No objection was filed by respondent herein to that report and plan. After evaluating entire evidence, Trial Court came to the conclusion that blasting of rocks is dangerous and the broken stones enters plaintiffs property and the same is liable to be prevented.

( 4 ) AGAINST the decision of Trial Court, respondent preferred A. S. No. 27 of 1999 on the file of Subordinate Judges Court, namakkal. Pending appeal, respondent filed i. A. No. 139 of 1999 for issuance of Commission which was allowed by the lower Appellate court. In his affidavit in support of the application for issuance of commission, he stated that Commissioner has been deputed to verify, while using explosives, the broken rocks or splinters are thrown to plaintiffs property and he wanted the Commissioner to verify the same when it is being used in the property. According to him, he is using scientific methods under the mining regulations, which fact was not noted or considered by the Commissioner, who was deputed by the Trial Court.

( 5 ) IN the objection to interlocutory application, petitioner contended that the application itself is not maintainable especially when respondent herein has not objected earlier commissioners report and there is no change of circumstances to have reissuance of new commission, it is further argued that this question also would have been sought to be ascertained by the very same Commissioner, who has visited the property while the case was pending before the Trial Court. It was further contended in the objection that when the Commissioner deputed by Trial Court inspected the property, respondent herein was also present and has taken note of all details including submissions made by respondent herein and only thereafter he filed his report. It is further argued that lower Court should not have allowed this application at this stage when the appeal itself was not heard. Even if Appellate Court has power to issued commission that power is to be exercised only sparingly and that too only if it finds that the evidence on record are not sufficient. Appellate Court converted itself as trial Court.

( 6 ) LOWER Court by the impugned order allowed the application, which is challenged in this revision petition. Since caveat was entered, I heard the revision itself at the time of admission,

( 7 ) LEARNED counsel for the petitioner submitted that the appellate Court can issue commission only very rarely and this is not such a case. Even if the Appellate Court got power for issue of commission, that power could be exercised only when the entire appeal is heard and when Court finds that on the basis of available evidence, it cannot pronounce judgment, by taking additional evidence in appeal, appellate Court should not convert itself as trial Court. It is further submitted that before issue of commission by Appellate Court, applicant will have to satisfy the Court as to whether he was prevented from taking out commission, for the relief stated therein, by the Trial Court. When there is already commissioners r