Appointment of Commissioner at appellate stage not proper.

Petitioners were plaintiffs while respon- dents were defendants in the suit.

2. Plaintiffs filed the suit in O.S.No.1100 of 1987 on the file of District Munsif, Karur on 19. 1987 seeking the relief of bars injunction. Along with the plaint, they also filed I.A.No.1305 of 1987 for appointment of an Advocate-Commissioner for inspection of the suit property-pathway and file his report and plan. Accordingly a Commissioner had been appointed and he inspected the suit pathway on 29. 1987 and filed his plan and report.

3. During the trial of the suit, which had been contested by the defendants, the Commissioner’s plan and report had been marked as Exs.C-1 and C-2. Ultimately, on consideration of the materials, the suit had been dismissed.

4. Aggrieved by the dismissal, the plaintiff filed A.S.No.2 of 1991 on the file of Sub Court, Karur. During the pendency of the said appeal, he also filed I.A.No.4 of 1991 for appointment of another Commissioner to inspect the suit property and file his report and plan. On the said application, a commissioner had been appointed and consequently, his report and plan had been filed into court.

5. Another application, being I.A.No.330 of 1993 had been filed in the said appeal under Sec. 151 of the Code of Civil Procedure, 1908 (as amended by Act 104 of 1976 - for Short ‘Code’) for reception of the Commissioner’s report and plan by way of additional evidence. Such a move had been resisted strongly and stoutly by the other side.

6. Learned Sub-Judge, after considering the materials and after hearing the arguments of learned counsel for the respective parties, dismissed the application giving rise to the present action.

7. The petitioners also filed C.M.P.No.l0074 of 1994 praying for stay of all further proceedings in the lower appellate court, pending disposal of this revision.

8. Even at the outset, I may point out that there are absolutely no merits for the entertainment of this revision. It is not as if, the trial court is dissatisfied with the Commissioner’s report and plan, namely, Exs.C-1 and C-2. But the sordid fact is that the said Commissioner’s report and plan had been duly considered and acted upon and on the basis of such a report the suit had been dismissed. In such state of affairs, the appointment of a Commissioner for the second time, during appellate stage, does not appears to be proper, on the face of the salient provisions adumbrated under 0.26, Rule 10(3) of the Code. No doubt such an appointment had not at all been questioned. But the question that arises for consideration is as to whether reception of the report and plan filed by such a Commissioner by way of additional evidence is permissible under law.

9. Reception of Additional evidence at the appellate stage is governed by the sanguine provi-sions adumbrated under O.45, Rule 27 of the Code. According to the said rule, it is not as if the i parties to an appeal are entitled to produce additional evidence oral or documentary in the appel-late Court, as a matter of right, unless and until anyone of the primordial conditions specified therein exhibit. Three such conditions had been prescribed in the said rule. They are:

1. The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or

2. The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or

3. The appellate court requires any document to be produced witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

10. In the case on hand, none of the conditions, as aforesaid,-exists for the reception of the second Commissioner’s report and plan, by way of additional evidence at the appellate stage. In this view of the matter, the refusal for recep