The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs:

i. call for the records of A.S.No.110 of 2008 from the Subordinate Judges Court, Perumbavoor,

ii. set aside Ext.P5 in exercise of the supervisory jurisdiction of this Honble Court;

iii. pass an order dismissing I.A.No.88 of 2009 in A.S.No.110 of 2008 on the file of the Subordinate Judges Court, Perumbavoor;

iv. grant the petitioner any other appropriate relief that this Honourable Court may deem fit to grant on the facts and in the circumstances of the case;

v. grant the petitioner such other appropriate interim reliefs that the petitioner prays from tie to time during the pendency of this writ petition.

vi. award the petitioner the costs of this writ petition.

2. Petitioner is the respondent in A.S.No.110/2008 on the file of the Sub Court, Perumbavoor. The appeal is filed by the respondent against the dismissal of his suit, O.S.No.199/2006 on the file of the Munsiffs Court, Perumbavoor, in which, he claimed reliefs of fixation of boundaries and perpetual prohibitory injunction against the defendant/petitioner in the writ petition. Ext.P1 is the judgment rendered by the learned Munsiff, dismissing the suit. In the appeal, against Ext.P1 judgment and decree, appellant/plaintiff moved an application for appointing a Commission to identify the suit property. Overruling the objections raised by the respondent in the appeal, the application was allowed, appointing an Advocate Commissioner to measure the suit property, with the assistance of a retired surveyor, and identify the properties of the appellant/plaintiff and respondent/defendant. Ext.P5 is that order. Impeaching the correctness of that order, contending that it is patently illegal to appoint a fresh Commission, without setting aside the Commission report and plan already prepared in the trial of the suit and exhibited in evidence as Exts.C1 and C1 (a) respectively, the petitioner seeks the aid of supervisory jurisdiction of this Court, filing this writ petition, to quash that order.

3. I heard the learned counsel on both sides. When a report is already collected and forms part of the records of the case, without adjudging its merits and then, on finding that it is liable to be set aside, no fresh Commission can be appointed for the very same purpose, that of identifying the suit property, and so much so, the learned Sub Judge went wrong in passing Ext.P5 order, and it is liable to be set aside, is the submission of the learned counsel for the petitioner. In the memorandum of appeal, copy of which is produced as Ext.P3, no ground was taken that the Commission report and plan, exhibited as Ext.C1 and C1 (a) are deficient in any manner, and as such, a fresh Commission has to be appointed for identification of the property, is also canvassed by the learned counsel for the petitioner to contend that the request made before the appellate court by the plaintiff for appointment of a fresh Commission was not justified and the order allowing the application by the appellate court is erroneous and unsustainable. The learned counsel for the respondent, inviting my attention to Ext.P1 judgment, submitted that the suit happened to be dismissed solely on forming a conclusion that Exts.C1 and C1 (a), report and plan prepared by the Advocate Commissioner, are not sufficient to identify the suit properties. It was in that context, an application was moved before the appellate court for appointment of a fresh Commission, which was allowed under Ext.P5 order. No interference with that order, according to the counsel, is warranted in the facts of the case.

4. Perusal of the records produced in the writ petition and the submissions made at the bar, disclose that the parties are direct brothers and the dispute between them relating to the suit property emerge under documents executed by their father. Whereas the plaintiff claimed title and possession over the plaint property, having an extent of 25 cents under Ext.A1 Gift deed the defendant resisted the claim contending that property also formed part of Ext.B1 Settlement deed executed in his favour, by the father. The learned Munsiff, as seen from Ext.P1 judgment, taking note that the defendant was an attesting witness in Ext.A1 Gift deed and that he has no case it was not accepted by the plaintiff, concluded that under Ext.B1 Settlement deed, which was later in point of time, the defendant will not get any right over the suit property. However, the suit was dismissed holding that it was not possible to identify the property as shown in Ext.C1 (a) plan prepared by the Commissioner and also for the reason, side measurement of the property allotted to the plaintiff are not mentioned in Ext.A1 Gift deed. Plaintiff had admitted that some area from his property was given for widening a way and, according to the Munsiff, there was no material to show how much area was so given. I have adverted to these aspects in these proceedings because, the approach of the learned Munsiff in adjudicating the issues involved in the suit, prima facie, was not correct. If at all, the Commission report was in any way deficient, further orders should have been issued to the Commissioner to identify the property on the basis of the documents and the survey records. Court should not raise its hands in helplessness if the data furnished by the Commissioner is found deficient. So much so, in the appeal, in considering the challenges raised against the dismissal of the suit, having regard to the proved facts and circumstances involved, the one and only question that require to be resolved is whether from Ext.C1 report and C1 (a) sketch, the suit property is identifiable, and if not, necessarily, as the deficiency thereunder could not be imputed against the plaintiff, he should be given a further opportunity for identification of the property by way of a fresh Commission. I find considerable force in the submissions made by the learned counsel for the petitioner that it was improper, rather, not in consonance with the accepted principles of law to appoint a fresh Commission without setting aside the previous report and plan filed by the Commissioner appointed by the courts. There was difference of opinion as to whether a second Commission could be appointed without setting aside the previous report filed by a Commissioner appointed by a court. In Narayana Guptan v. Madhava Menon and others (AIR 1965 Kerala 95), it was held that issue of a second Commission on the same subject without setting aside report of the first Commissioner at the most is only an error, or defect or irregularity in the proceedings. However, in Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) (AIR 1985 Kerala 83), a division bench of this Court, after considering that question in depth with reference to judicial pronouncement hitherto made till then as to whether a second Commission without setting aside the previous report of the Commissioner has expressed the view that such appointment is illegal. However, the judicial pronouncement as aforesaid spelt out in Swami Premanandas case (supra) has to be read and understood with reference to Order XXVI Rule 10 (3) of the C.P.C., which reads thus:

"Where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think it."

So, the further enquiry as envisaged under the Rule enables an enquiry by the same Commissioner also if his report is found deficient on any point. However, before adopting that course of ordering appointment of a second Commission on the ground that there is some deficiency which requires to be filled up, the court must essentially form such a conclusion before a second Commission is appointed. Order appointing a second Commission on mere allegations of discrepancy in the previous report, is not at all proper. This Court has held in Sivaraman v. V.C.Narayanan (AIR 1987 Kerala 156) thus:

"It is not correct to say that under no circumstances without setting aside an earlier report, the Court can issue a second Commission or the same Commission to collect details which have been omitted by him in the first report. Further enquiry to be made"

Order XXVI Rule 10 (3) of the C.P.C. pre-supposes that an enquiry by the same Commissioner also is possible if the Court feels so. If the report of the first Commissioner is found to be deficient on any point, the proper course would be to direct the same Commissioner to remedy that defects. So much so, it is crystal clear that a second Commission to note details which have been omitted by the Commission in his previous report is permissible under law even without setting aside the earlier report. His Lordship, Justice Varghese Kalliath rendered the above decision, expressing the view as aforesaid, after taking note of and analysing the scope and ambit of the decision rendered by the division bench in Swami Premanandas case (supra), which held that appointment of a second Commission without setting aside the previous report is illegal. So, an analysis of the question whether the appointment of a Commission without setting aside the previous report is permissible, leads to a proposition that, generally, if the previous report is found unacceptable, then without setting it aside, a fresh Commission cannot be appointed, but, if the earlier report suffered from some deficiency, which could be supplied by further enquiry and it is not vitiated by serious infirmities, the court is competent to pass appropriate orders resorting to Order XXVI Rule 10 (3) of C.P.C. directing the same Commissioner or appointing a fresh Commissioner, without setting aside the previous report to note the details which have been omitted. There cannot be any doubt as to the competency of the appellate court when it is satisfied from the materials produced that the Commission report is unacceptable or it suffers from some deficiency to pass appropriate orders for setting aside that report or directing a further enquiry to note the details, which were omitted in the earlier report. A division bench of this Court in State v. Kodakkat Pocker & Others (1987 (1) KLT 714) pointed out that the endeavor of the court should be to arrive at a correct decision in a given case, and that being so, whether or not, any objection is filed, the acceptability of the Commission report has to be examined and appropriate orders have to be issued for appointment of a fresh Commission if the previous report is found unacceptable, and such power can be exercised by the appellate court also in appropriate cases. So, essentially, whether it be the trial court or the appellate court, when any objection is raised to the acceptability of the report, it has to examine whether the report is liable to be set aside on account of serious infirmities or if it has some deficiency, which does not call for setting it aside as a whole but only for a further enquiry to note the details to cure the deficiencies in the previous report.

5. The learned Sub Judge has passed Ext.P5 order without examining the merit of Ext.C1 report and C1 (a) plan, which already formed part of the records of the case. The most significant question to be considered is whether Exts.C1 report and C1 (a) plan are sufficient to identify the suit property. Since that question emerges for consideration in appeal, it is proper, the appeal be heard in which that question can also be considered along with other challenges, if any, raised by the appellant/plaintiff against the impugned judgment. The appellate court has to form its own opinion whether the report suffers from serious infirmities warranting its setting aside or it is deficient only in certain points which could be filled up by a further enquiry retaining the report. In case, a further enquiry by a fresh Commission is required while setting aside the previous report or not, it is open to the appellate court to appoint such Commission by itself and collect the details or remit the case to the court below after setting aside the impugned judgment giving suitable directions for a fair and proper disposal of the suit on merits. In this context, at any rate, the appellant/plaintiff should be given further opportunity to identify the suit property in case the report is found unacceptable and liable to be set aside or it suffers from some deficiency requiring only noting of such details which have been omitted as he could not be found penalised for the lapses, if any, committed by the previous Commissioner. Ext.P5 order passed by the learned Sub Judge, without hearing the appeal and entering a finding on the merits of Exts.C1 report and C1 (a) plan is clearly unsustainable. Quashing Ext.P5 order, the learned Sub Judge is directed to hear the appeal and pass appropriate orders on the Commission report and plan taking note of the observations made above. Writ petition is disposed as above. Communicate a copy of the judgment to the court below forthwith.