Notice of inspection not issued to petitioners.

1. Theabove civil revision petition is directed against the fair and decretal order dated 13.1.1998 made in I.A.No.1807 of 1997 in O.S.No.229 of 1995 by the Court of Additional District Munsif, Ramanathapuram, thereby dismissing the application filed under O.26, Rule 9 of C.P.C., thus declining to re-issue the commission already issued by the court below.

2. The petitioners are the defendants in the suit filed by the respondents for permanent injunction restraining the petitioners/defendants from in any manner interfering with the peaceful possession and enjoyment of the suit properties, the well located therein and further for a mandatory injunction to close the outlets in the southern wall of the petitioners door, and to remove the drainage channel put up therein by the petitioners/defendants.

3. Today when the above civil revision petition has been taken up for consideration, the learned counsel appearing for the petitioners would be present but on the other side neither the respondents nor their counsel on record appeared before this Court and hence hearing the learned counsel for the petitioner and perusing the records placed before this Court, the following orders, are passed.

4. The learned counsel for the petitioners would contend that though a commission had been appointed earlier, the petitioners were not able to make proper representation before the commissioner since the very appointment of the commission by the lower court was an ex parte one and even the commissioner thus appointed ex parte did not have the courtesy to issue notice to these petitioners prior to inspecting the suit locality and hence the petitioners especially in view of the fact that the first petitioner is a blind person and the second petitioner is his daughter and being an helpless lady, they were left with no option but to seek for the re-issue of the same commission in order to point out certain salient features on ground including a well in the suit locality.

5. The learned counsel for the petitioners would cite many judgments delivered by different courts including this Court in consummation of his argument that the re-issue of the commission when sought for, courts should be liberal in ordering the same for ascertaining the facts on grounds at any stage of the suit prior to the pronouncement of the judgment.

6. The learned counsel for the petitioners would cite a decision reported in Chaitan Das v. Smt. Purnabasi Pattnayak and others Chaitan Das v. Smt. Purnabasi Pattnayak and others Chaitan Das v. Smt. Purnabasi Pattnayak and others , A.I.R. 1988 Ori. 52 wherein it is categorically helds regarding compliance of O.26, Rule 18 of C.P.C. that, “if no notice is served on any of the parties to the suit to appear before the survey knowing commissioner at the time of local investigation, the result of such local investigation, namely, the report and the map, cannot be accepted as evidence.“ In the next decision cited by the learned counsel for the petitioners is reported in Jamil Ahmed Taban and others v. Must.Khair-Ul-Nisa and others Jamil Ahmed Taban and others v. Must.Khair-Ul-Nisa and others Jamil Ahmed Taban and others v. Must.Khair-Ul-Nisa and others , A.I.R. 1970 Del. 205 wherein also the same point is stressed.

7. The third decision cited by the learned counsel for the petitioners is reported in Mandera Mukherjee v. Sachindra Chandra , A.I.R. 1962 Pat. 211 wherein it has been held:

“Court appointing commissioner without notice to parties is without jurisdiction” and would further contend that ‘the court shall direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders “and” under Rule 10(2) of O.26 of the Code of Civil Procedure, the report of a commissioner is evidence and any evidence recorded by a Pleader Commissioner, without notice to the parties to the suit, cannot be used as evidence at all.”

8. The other decision reported in Mahendranath Parida v. Purnananda Parida