A court must record reasons for setting aside a Commissioner's report before doing so.

1. Defendants in O.S.No.549 of 1998 on the file of Principal District Munsif s Court, Namakkal are the revision petitioners.

2. Plaintiff filed a suit for declaration that he has got right of way to the scheduled property and for consequential injunction restraining defendants from interfering with that right. In the schedule plaintiff has given the description about the way through which he wants access to his property.

3. Defendants seriously contested the claim of plaintiff by filing written statement.

4. During trial, a Commissioner was deputed, who filed his report and plan on 20.11.1998. Plaintiff filed his objection to the report on 12. 1998 and moved an application that since objection was filed belatedly, seeking permission of the Court to receive the same. He also filed an application as I.A.No.993 of 1999 to scrap the Commissioners report for various reasons mentioned in the objection.

5. A detailed counter was filed by petitions contending that there is no necessity to scrap the report and even if there is any defect or deficiency in the report, the same could be rectified by asking the very same Commissioner to file a supplementary report.

6. By the impugned order, lower court scrapped the report. The same is challenged in this revision petition.

7. Notice of motion was ordered and interim stay was granted. After respondent entered appearance, I heard the revision.

8. Order 26, Rule 10 of Code of Civil Procedure deal with procedures of Commissioner, which read thus :

"Order 26, Rule 10 -Procedure of Commissioner -(1) The Commissioner, after such local inspection as he deem necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit -The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence win the suit an shall formp[art of the record;but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

.(3) Commissioner may be Examined in person -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. As per the said rule, the report of the Commissioner shall be evidence in the case and shall form part of the record. Sub-rule (3) enables the Court to order further enquiry on the report if the Court is dissatisfied with the proceedings of the Commissioner. Taking these two provisions together, it is clear that before setting aside the report or before further enquiry on the ground that it is dissatisfied with the proceedings of the Commissioner, the Court will have to apply its judicial mind whether the report is defective or deficient for any reason. It is also well settled that merely because an objection has been filed, that will not be a ground for issuing fresh commission. Before setting aside the report, court must record its reasons as to why its is not satisfied with the report. If it scraps the report or feels dissatified with the report, the result is, the Court is not accepting that evidence. Parties are entitled to know the reasons as to why the report is not satisfactory and why the report is scrapped.

10. As early as in Thottamma v. C.S. Subramaniayyan, AIR 1922 Mad.219, a Division Bench of this Court held that the duty of the Court, whenever a Commissioners report is objected to, is to hear objections win 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.

11. In Visvanadham v. Mangamma, AIR 1930 Mad.236, it is held thus:

The practice of appointing a second Commissi