The Appellate Court's discretion to examine evidence through commissioner is upheld, ensuring procedural adherence without jurisdictional error.

JUDGMENT

This original petition is filed against Ext.P6 order dated 04.02.2019 in I.A.No.1574/2018 in A.S.No.50/2017 on the files of the Sub Court, Tirur which arose out of O.S.No.150/2014 on the files of the Munsiff Court, Tirur.

2. It is submitted by the learned counsel on both sides that the case has now been transferred to the Additional District Court, Tirur.

3. O.S.No.150/2014 was filed by the 1^st respondent herein for mandatory injunction to restore the flow of water through the common water channel (pothuthodu) which is passing through the north-east corner of the plaint schedule property as well as to restrain the petitioner/2^nd defendant from obstructing the flow of water. The learned Munsiff dismissed the suit against which the 1^st respondent preferred A.S.No.50/2017 before the Appellate Court. The 1^st respondent filed I.A.No.1397/2018 in the appeal for appointment of an Advocate Commissioner which was allowed by the Appellate Court. The Advocate Commissioner submitted Ext.P2 report after a local inspection. The 1^st respondent thereafter filed I.A.No.1574/2018 (Ext.P5) to examine the Advocate Commissioner as witness in the appeal. The same was allowed by Ext.P6 order.

4. The petitioner challenges Ext.P6 in this original petition on the ground that no sufficient reason has been stated by the learned Sub Judge for allowing Ext.P5 application.

5. Heard Sri.N.Deepa, the learned counsel for the petitioner and Sri.P.Chandrashekhar, the learned counsel for the respondents.

6. Ext.P6 order has been passed by the Appellate Court in exercise of the powers under Order 26 Rule 10 (2) of the Code of Civil Procedure , 1908. Rule 10 (2) of Order 26 reads as follows:

“(2) Report and deposition to be evidence in suit.-- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.”

7. Order 41 Rule 27 deals with production of additional evidence in Appellate Court and Rule 27(1)(b) provides that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, it may allow such evidence or document to be produced, or witness to be examined.

8. The Appellate Court, in Ext.P6 order, has stated that the Commissioner has to be examined to ascertain the prevailing situation of the site. Under Order 26 Rule 10, the Court has the discretion to examine the Commissioner. Under Order 41 Rule 27, the Appellate Court has power to admit additional evidence, if the conditions laid down in the Rules are found to exist. In Ext.P6, the Appellate Court has found that, to ascertain the prevailing situation at the spot, the Commissioner has to be examined. The order does not suffer from any jurisdictional or inadvertent error of law. I do not find any reason to interfere with Ext.P6 order in exercise of my powers under Article 227 of the Constitution of India. Since the appeal is of the year 2017, the Appellate Court is directed to dispose of the appeal, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment.

The original petition (civil) is disposed of accordingly.