Courts power to order fresh appointment of Commissioner.

The plaintiff in the suit is the petitioner in this revision. The respondents are the defendants in the suit. The suit has been laid for a declaration of the plaintiff’s right to drain water of his house and property into the land of the defendants and for a permanent injunction.. Pending the suit, the plaintiff sought for the appointment of a Commissioner to note the physical features. The Commissioner appointed by the court below has submitted his report. The defendants subsequently took out I.A.2011 of 1984, to scrap the report of the Commissioner and appoint a fresh Commissioner to note down the physical features. This application has been allowed by the Court below and this revision is directed against the orders of the Court below.

2. It is well settled proposition that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commission. The power in this behalf is circumscribed by the principles under Order 26, rule 10(3) of the Civil Procedure Code, hereinafter referred to as the Code. The power has to be exercised only after the Court below renders a finding that the proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry. In the present case, the order of the Court below does not express an opinion that the proceedings and the report of the earlier Commissioner are not satisfactory. The court below has opined that the truth or otherwise of the allegations thrown against the Commissioner’s report need not be gone into and it is better to change the Commissioner. It has proceeded on the basis that allegations are thrown against the earlier Commissioner and hence, it is not fair to accept his report. This is not the proper method of dealing with an application of the present nature. These features oblige me to interfere in revision and accordingly this revision is allowed and I.A. No.2011 of 1984 is remitted back to the file of the Court below for it to consider the same in accordance with law, keeping in mind the provisions of Order 26, rule 10(3) of the Code and the judicial pronouncements throwing light on the principles involved. I make no order as to costs.