The appointment of an Advocate Commissioner is discretionary and aimed at obtaining evidence that can only be had on the spot.

1. The Petitioner/Respondent/Defendant has filed the present Civil Revision Petition as against the order dated 06.07.2009 in I.A.No.335 of 2007 in O.S.No.37 of 2006 on the file of Learned Sub Judge, Poonamallee.

2. The Respondent/Petitioner/Plaintiff has filed I.A.No.335 of 2007 as per Order 26 Rule 9 of Civil Procedure Code praying for issuance of an order in remitting back the warrant to the Advocate Commissioner Mr.B.Thiyagarajan to revisit the suit property, to investigate and submit a detailed report with the help of Taluk Surveyor as to whether the suit property is enclosed by the compound wall of the Revision Petitioner/Respondent/Defendant/Factory or not etc.

3. The trial Court, while passing order in I.A.No.335 of 2007 in O.S.No.37 of 2006, dated 06.07.2009, has among other things observed that 'the original suit has been filed by the Respondent/Plaintiff for the relief of declaration and injunction and further that in appointing the Advocate Commissioner and requiring him to file a Report and Plan to find out as to whether the compound wall in the suit property is situated within the suit boundary would not create any legal impediment and resultantly, allowed the application in the interest of justice.

4. The Learned Counsel for the Revision Petitioner/Defendant submits that an Advocate Commissioner has already submitted his report in I.A.No.261 of 2006 in O.S.No.37 of 2006 and in the said report, the Commissioner has observed as follows:

“On the western side of the defendant's extention property, there is a compound wall ending at part on the north, which is denoted as 'A' in the rough sketch. From part 'A' I had measured towards east to a length of 164 feet it ends as part 'B'. From part 'B' I measured up to the length of 94 feet which is part 'C'. The BCD is the suit property.

The suit property is vacant land surrounded on the north by: Metro Water land, south by: Defendant's land east by: Defendant's land on the west by Metro Water land. There is a big compound wall from part B to C. From part B to E there is a brick compound wall raised up to 3 feet height and from part E to C the compound wall raised up to 5 feet height. Bricks and cement bags are seen in the suit property. From part 'A' to 'B' constructed foundation with rubble stones. Such are the physical features of the suit property.”

Therefore, when the Advocate Commissioner has noted down the physical features of the suit property for the second time the very same Commissioner need not be appointed to investigate and to report whether the compound wall of the suit property is situated within the suit property or otherwise.

5. As per Order 26 Rule 9 of the Civil Procedure Code, a Court of Law is empowered to issue a commission during the pendency of the suit to conduct investigation and submit a report elucidating any matter in dispute or to ascertain the spot fact situation.

6. In Law the report of the Commissioner is part of case record. The examination of Commissioner is essential when either party disputes the veracity of the report.

7. Generally, an issuance of second commission for a roving enquiry at the fag end of the completion of the suit is to be refused.

8. Evidence of the Commissioner is not binding on a Court of Law. Also, the report of the Commissioner is to be utilized as an aid to the trial Court in arriving at the conclusions.

9. Unless a Court of Law has recorded its finding that the report of earlier Commissioner is unsatisfactory, the second Commissioner for the same purpose cannot be appointed.

10. Where the Commissioner appointed in the case has furnished a detailed report, without considering the same, the Court will not appoint another Commissioner.

11. The object of appointment of an Advocate Commissioner for the purpose of local inspection/investigation is not aimed to collect evidence, but to obtain evidence.

12. Where the Commissioner exceeded his jurisdiction instead of submitting a factual report, records findings, th