The defendant is the revision petitioner. Being aggrieved by the order passed by the Court below in dismissing the application filed by him under Order 26 Rule 9 r/w Section 151 of the Code of Civil Procedure for appointment of Advocate Commissioner for the second time, the present revision is preferred.

2. Heard both sides.

3. It is the case of the revision petitioner that earlier an Advocate Commissioner was appointed to note down the physical features of the suit properties in I.A.No.387 of 2013; however in that application he was set exparte. According to him, the said Commissioner without even issuing notice, has inspected the suit property and filed his report and plan. Hence, the present application in I.A.No.1693 of 2014 in O.S.No.88 of 2013 was filed seeking to re-issue of Commission. However, the said application was dismissed vide the impugned order on the ground that when the petitioner has chosen to file a petition to set aside the exparte order along with the written statement, has not filed any objection to the report and plan submitted by the earlier Commissioner.

4. The learned counsel for the petitioner would submit that it is essential to appoint a second Commissioner to inspect the suit property and file a fresh report and plan in the presence of both the parties in order to render justice. However, the court below without considering the same had dismissed the application filed by him. In support of his contention he cited the judgment of this Court reported in 1999 1 MLJ 60 [Kathiresan and another vs. Shanmugha Sundaram]. The relevant portion is extracted here under:-

"14. Finally, the petitioners being defendants to the suit having been already once set exparte and on an application to set aside the said order allowing the same, they have been allowed to participate in the further proceedings of the suit is in no way connected to the matter in issue, since the point for consideration, so far as the subject matter is concerned, is whether the commission already appointed by the lower court should be re-issued for the purpose sought for by the petitioner or not. Through many judicial pronouncements, the upper forum of law have made it quite clear that it is always desirable, when a commission is sought to be appointed, for courts to be liberal in such appointments and on sufficient reasons either to bring to fore new set of facts or to give enough participation for a party, which had not been adequately represented before the Commissioner during his visit. The re-issue is to be ordered liberally and that there is no such stage of the suit within which either issue of such commission or the re-issue of the same could be restricted but prior to delivering the judgment even in a matter, which is reserved for judgment reopening the case, such appointment of the commission or re-issue of the same could be ordered by civil courts. In spite of such telling versions available, it is amazing to note that the lower court has refused to re-issue the commission, especially, when it was sought for on ground that the petitioners were not at all issued with the notice of the appointment of the commission nor participated in any manner."

5. The learned counsel for the respondents submitted that the petitioner had filed another application in I.A. No. 1693 of 2014 for appointment of a second commissioner with a mala fide intention to drag on the matter, which was correctly dismissed by the court below, warranting no interference in this revision.

6. I have considered the submissions made on either side and perused the records.

7. As rightly held by the court below, the petitioner could have very well filed his objection to the Commissioner's report and plan, which were marked as Exs.C1 and C2, if he is aggrieved over the same, while filing his written statement as well as the petition to set aside the ex parte order. He has also not stated the purpose for which the commission has to be re-issued. As stated earlier when he