CRP/6/2006 of Pentuk Lepcha Vs Sonam Lepcha and Ors. on 2 December 2006

JUDGMENT

A_P_.Subba,J.

This Revisl.on Petition filecl u/S.115 CPC read with Sec.151 CPC and Article 227 of the Constitution, is directed 'b6

against the order dated 19.4.2006 passed by the learnedCivil Judge, North & East at Gangtok, setting aside the reportof the Amin Commissioner dated 21.10.2005 in Civil SuiY No.5Of 2005.

The facts relevant for the disposal of this RevisionPetition are that, the present Plaintiff/Petitioner in the year2000, instituted a suit in the Court of the Civil Judge, North atGangtok against the Respondents, for declaration and otherreliefs in respect of piece of land covered by plot Nos. 46and 565 situated at Santok, Sakyong Block, Lower DzonguElaka in the North District. The suit which was registered asCivi./ Sutl No.7 of 2000 was ultimately dismissed by thelearned Court vide judgment and decree dated 20.7.2002.Aggrieved by this order the Plaintiff/Petitioner preferred anappeal before the learned District Judge, East & North atGangtok. The learned District Judge after hearing theparties, set aside the judgment and decree passed by thelearned Civil Judge (E) and remanded the matter to the ld.trial Court. Since the ld. District Judge was of the view thatthe contesting parties had failed to establish identity of thesuit land, he directed the ld. trial Court to appoint an AminCommissioner to ascertain the identity of the suit land and todispose of the suit as per law. In pursuance of the direction, I,.......,,,'

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the learned trial Court with consent of both the learnedCounsel for the parties, appointed one Shri Nimzang Bhutiaas Amin Commissioner. The said Amin Commissionersubmitted his report on 21.10.2005. The defendant havingdied in the meantime, one of his sons who was brought onrecord as Defendant No.1, filed objection to the AminCommissioner's report on ?.3.2006, to which the Petitionerfiled his reply on 28.3.2006. The parties were then heard andvide order dated 1?.4.2006 the report of the AminCommissioner was set aside. It is against this order that thePetitioner has come up in the present Revision Petition.

3. Mr. A. J. Sharma, learned Counsel appearing onbehalf of the Petitioner and Mr. J. K. Chandak, learnedCounsel assisted by Ms. Ranjita Kumari, learned Counselappearing on behalf of the Respondents were heard. WhileMr. A. J. Sharma assailed the impugned order as bad in lawand unsustainable on the ground that the learned trial Courtexercised a jurisdiction not vested in it by law, Mr. Chandaksupported the order contending that since the reportsubmitted was not in terms of the directions made by theAppellate Court, there was no option but to set aside thesame, and, as such, there was no legal infirmity in theimpugned order.

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The short question for consideration is, whether thelearned ld. trial Court exercised a jurisdiction not vested in itby law or has acted in the exercise of its jurisdiction illegallyor with material irregularity in .passing the impugned orderand also, whether the impugned order, if it had been madein favour of the Petitioner, would have given finality to the lisor other proceedings.

5. In order to appreciate the rival submissions madeby the learned Counsel, it would be necessary in the firstinstance to notice the ambit and scope of Sec.115 of theCode of Civil Procedure. In this regard, it is relevant to notethat the scope of interference by the High Court underSec.115 CPC as it originally stood under 1898 Code has beenconsiderably narrowed down by successive amendments ofthe Code over the years with the result that the powersu/S.115 are now restricted to a considerable extent.

6. In order to appreciate the above position, itwould be useful to briefly notice the legislative changesbrought about by the van.ous amendments from time to timeas follows - Sec.115 of the present Code under the originalCode of 1898 stood as follows: - "115. Revis/on -The Hlgh Court may call for therecord of any case whlch has been declded by any Court subordinate to such HIgh Court and ln whlchno appeal lles thereto, and lf such subordlnate Courtappea,S - (a) to hove exerclsed a jurisdlc«on not vestedln 11 by law, orln 11 by law, or (b) to have falled lo exerclse a ]udsdlcllon sovesled, orvesled, or fc) to have acted ln the exercise Of Its]ursdlc«on Illegally or wllh materialIrregularity,]ursdlc«on Illegally or wllh materialIrregularity, the Hlgh Court may make such order [n the case as11 thinks fl'."

The Amendment Act of 1976 renumbered the above original Section and added a proviso besides inserting a newSub-sec(2) and appending an explanation to it. Thus, after the 1976 amendment, the Section stood as follows: - a "115. Revis/.on -(1) The High court may call for therecord of any case whlch has been declded by anyCouil subordlnate to such Hlgh Court and ln whlchno appeal lles lhereto, and lf such subordinate Courtappears - (a) ro ha`/e exerclsed a jurlsdlcllon not vestedln lt by low, orln lt by low, or (b) lo hove felled lo exerclse a |urlsdlctlon sovested, orvested, or (cJ to have acted ln the exercise of Its|urisdlcllon Illegally or wllh materiallrregularify,|urisdlcllon Illegally or wllh materiallrregularify, the Hlgh Court may make such order ln the case aslt thinks fll :

[Provlded that the High Couh shall not, under thissecllon, vary or reverse any order made, or anyorder decldlng an Issue, In the course Of a sull orother proceedlng, except where - •..i..........-.-, (a) the order, lfll had been made ln favourofthe pally applylng for revlslon, would haveflnally dlsposed Of the suit or otherproceedlng, orthe pally applylng for revlslon, would haveflnally dlsposed Of the suit or otherproceedlng, or

(b) the order, if allowed lo stand, wouldoccaslon a lallure Of ]ustlce or causeIrreparable Injury to the party agalnslwhom 11 was made.I"occaslon a lallure Of ]ustlce or causeIrreparable Injury to the party agalnslwhom 11 was made.I"

The next amendment effected by Civil Procedure Code (Amendment) Act 1999 which came into force w.e.f.July 1, 2002, inter alia, amended the above proviso dulydeleting the clause (b) while retaining clause (a). Thus, afterthis amendment, Sec.115 stands as follows: - "115. Bewllon I(1) The I.Ilgh Court may cdi for therecord Of any case whlch has been declded by anyCourt subordlnale to such lllgh Court and ln whlchno appeal lies thereto, and lf such subordlnate Couitappears - (a) to have exerclsed a jurlsdlcHon not vestedln » by low, orln » by low, or (b) to ha`re falled to exerclse a jurlsdlctlon sovesled, orvesled, or

(c) to have acted ln the exerclse Of ItsjurlsdlcHon fllegal[y or With materialinegultryjurlsdlcHon fllegal[y or With materialinegultry the Hlgh Court may make such order in the case aslt lhlnks fll:

[Pro`/lded that the lllgh Couit shall not, under thlssecHon, vary or reverse any order made, or anyorder decldlng an Issue, ln the course Of a sLill orolheT proceedlng, exceDl \^/here the order. ff it hadbeen made ln favour Of the Dart`/ clDDlvlna forrevlslon. would have flnalh/ dlsDosed Of the sull orother E~eediras.I

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(2) The Hlgh Court shall not, under lhls section,vary or reverse arry decree or order agdinsl \^/hlchan appeal lles either to the Hlgh Couit or to anyCourt subordlnate lherelo.

(3) A revlslon shall riot operate as a stay of sull orother proceedlng before the Court except where •,., •, `1:-\,i..~..,, such suit or other proceeding ls stayed by the HighCour']

Exp/anal/.on - ln this section, the expression "anycase which has been declded" Includes any ordermore, or any order deciding an Issue, ln The courseol a sull or other proceeding."

The above legislative history of Sec.115 would goto show that the Amendment Act of 1976 added a provisoto sub-Section (1 ) and after the addition of this proviso, onlysuch order could be reversed or varied in the revisionaljurisdiction which is not appellable and which would attracteither proviso (a) or (b) and any of the clauses of Section115(1) CPC. Thus, even if the order fell under any of theclauses of Sec.115(1), the High Court would have nojurisdiction to vary or reverse any interlocutory order unlessthe order was such that had it been made in favour of theparty applying for revision, it would have disposed of the suitor proceeding, or if allowed to stand, would occasion afailure of justice or cause irreparable injury to the partyagainst whom it was made. Since proviso (b) was deleted bythe 1999 Amendment, the High Court can now interfere inrevision u/S 115 C.P.C. only if the impugned order falls underany of the clauses of Sec.115(1) and also if it is satisfied thathad the impugned order been made in favour of the applicant, it would have finally disposed of the suit or otherproceedings.

8. While consi.dering the effect of the above variousamendments that came up for consideration in a batch ofappeals, .in Shiv Shakti Co-op Housing Society Nagpur vs.M|SSwardi Developers& Others AIR 2003 SC 2434 and Others +he <r Apex Court observed in paras 9 and 10 as follows: - "9. It is to be noted prior to theomendmenls fo the Code by OldAmendment Act, the power Of revision \^raswider. By the amendment, cendin posltlverestictions were put on the High Court'spower to deal with revisions under S.115.Prior to the said amendment. it was norstricliv necessorv that the imouaned orderwould ha\re the result Of finally decidina theIts or the oroceedinas in the lower couhs. Infact. the Do\^rer could be exercised ln anycase where iurfsdictional error wascommitted bv the oriainal court or wheresubsfanlial iniustice had resuthed. Bv the OldAmendmenl Act. 1'he condition Of finalivdecidina Of lis and the oroceedinas in thesubordinate courls was introduced. Theproviso which was introduced conrdinsqualifications which ore pre-requisites beforeexercise Of power under S.115. They \^rereclciuses (a) and (b) Of the proviso. Loaiealiv.the Hidh Court hcis suo motu Bower to revisean order `^/here tolol failure Of iustlce `^/ouidhave occasioned or where irreparable losswould have caused to the Darties againstwhom it vvcls mcide. These Do`^/ers werererdined bv clousefb`. Though, after 1976,the exercise Of power was somewhdrcircumscribed, it was not tordlly cundiled. Jnother words. the Hiah Couit could even afterthe 1976 amendment interfere in caseswhere..there was failure Of iustice or -JF

imeDarable loss caused. the nature Of theDroceedinas was substantialiv chanaed andthe suo molu Bower Of the Hidh Court wasretained. It `^ras in the nclture of power Ofsuperintendence Of the High Court over thesubordinate courts. Changes were related toindicating llmifations in exercise Of power.

10. Even offer the amendments in 1976, in1999 and prior to the amendmenl in 1976,the revision power was exerclsable in a case\^rhere the order or the decree, as the casemay be, wcis not oppealoble."( emphasisadded ).

As observed by the Apex Court in para 32 of theabove judgment, the stress now is on the question whetherthe order in favour of the party applyi.ng for revision wouldhave given finality to suit or other proceedings. As furtherlaid down by the Court in the same paragraph, the test tobe applied is, if the answer to the question as to whether theorder if it were made in favour of the revision petition wouldhave finally disposed of the suit or other proceedings is `yes'then the revision would be maintainable, and if the answer is`no' then the revision would not be maintainable.

9. Having thus noticed the relevant provision of lawas it now stands, we may now proceed to see if theimpugned order falls under any of the clauses of Sec.115 (1 )and also whether if it satisfies the condition of finalityspecified under the amended proviso.

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'0.Order XXVI Rule 10 of CPC under which the impugned order has been passed provides as follows :- "10. Procedure of Commjssjor]er - (1) TheCommissioner, after such local inspection ashe deems necessary and offer reducing towr.hing the evi.dence token by him, shall returnsuch evidence, together with his report inwTiling signed by him, to the Court.Commissioner, after such local inspection ashe deems necessary and offer reducing towr.hing the evi.dence token by him, shall returnsuch evidence, together with his report inwTiling signed by him, to the Court.

(Z) RIepoH and depositions to be evidence lnsujf. - The report of the Commissioner and theevidence taken by him (but not the evidencewithout the report) shall be evi.dence in thesuit and shclll form part Of the record; but theCourt or, w.hh the permission of the Court, anyOf The partles to the suit may examine theCommissioner personally in open Courttouching any of the matters referred to him ormentioned fn his report, or os to his report, oras to the manner in which he hcls made theinvech.gation.sujf. - The report of the Commissioner and theevidence taken by him (but not the evidencewithout the report) shall be evi.dence in thesuit and shclll form part Of the record; but theCourt or, w.hh the permission of the Court, anyOf The partles to the suit may examine theCommissioner personally in open Courttouching any of the matters referred to him ormentioned fn his report, or os to his report, oras to the manner in which he hcls made theinvech.gation.

(3) Commissioner may be examined inpersori. - Where the court is for any reasondissatisfied with the proceedings of theCommissioner, il may direct such further inquiryto be made as it shall think fit."persori. - Where the court is for any reasondissatisfied with the proceedings of theCommissioner, il may direct such further inquiryto be made as it shall think fit."

77. A bare reading of the above provision wouldA bare reading of the above provision wouldmake it clear that the report submitted by the Commissioneralong with the evidence taken by him shall be evidence inthe suit and shall form part of the record. Interpreting thisprovision, several decisions have held that the object of thelocal inspection/investigation is merely to assist the Court byobtaining evidence, which from its peculiar nature can bestalong with the evidence taken by him shall be evidence inthe suit and shall form part of the record. Interpreting thisprovision, several decisions have held that the object of thelocal inspection/investigation is merely to assist the Court byobtaining evidence, which from its peculiar nature can best •...:i.......---- be had from the spot itself. Such report clarifies or explainsany point, which is left doubtful on the evidence on record.The sole purpose of the inspection/investigation is thus toenable the Court to properly and correctly understand andassess the evidence on record. It is, therefore, clear that thereport of Commissioner is nothing but evidence like anyother evidence on record. Thus, if the report submitted bythe Commissioner under Order XXVI Rule 10 CPC is to beread as evidence in the suit and is to form part of the record,it is evident that the evidentiary value of such report has tobe judged by the Court at the time of evaluating the entireevidence on record.

It is pertinent to note that Rule 10 already quotedabove which deals with the manner in which a report of theCommissioner is to be treated, only permits the orden.ng of`further enqulry' where the report received is unsatisfactory.The rule does not authorize the Court to set aside aCommissioner's report even when it is deficient. Rule 10 sub-clause (3) only provides that if the Court is dissatisfied withthe proceedings of the Commissioner, it may direct turf herenquiry and call for supplementary report from the sameCommissioner. The rule does not say that supplementaryreport cannot be called for without setting aside the first ir report in such eventuality. The words `furlher enquiry'occurring in sub-rule (3) of the section are of significance inthis regard. Interpreting the word `further' a Single Bench ofKerala High Court in Dr. P. Subromoni.om ys. K.S.E. Board aOlheJs (AIR J988 Hera/a 169) has observed that the word`furlher' means `additional' or `going beyond what exists'and then by the words 'furfher enquiry' employed in thesection, what is evidently intended by the legislature is tocorrect and bring on record something in addition to whathas already been brought in earlier. Such being the position,it was observed that `the intention could not have been towipe the slole clean and start afresh'.

J2. It is evident from the above that the approachadopted by the learned trial Court for setting aside theCommissioner's report is not in conformity with the provisionscontained in the Code with regard to the value to beattached to a report submitted by the Commissioner.However,a perusal of the impugned order goes to show thatthe learned trial Court while passing the impugned orderrelied on two old decisions, one reported in A/R f38) 1951Assom ]8 and the other reported in AIR I?31 Modros 73.Relying on these decisions, the learned Court came to theconclusion in paragraph 36 of the impugned order that it is . `-f+

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settled law that when the Court is of the opinion onconsidering the objection of the parties, if any, that theCommissioner has so misconceived his duties as to renderthe report valueless, it may wipe out and supercede the firstreport by a specific order to that effect and may issue afresh commission, if required. It would therefore benecessary to see if the two decisions duly support the viewtaken by the learned trial Court in the matter.

73. A perusal of the decision reported in A/A (38) 7957Assam 18 goes to show that two attempts made by theCommissioner appointed under Order XXVI Rule 9 CPC toascertain exact area of alleged encroachment havingproved abortive, the Plaintiff applied for issue of freshcommission. This petition was however rejected by the ld.Trial Court. On appeal, the High Court of Assam held thatthe learned trial Court did not exercise its discretion judiciallyor in accordance with sound legal principle indeclining to issue the fresh commission. It would, therefore,appear that the decision is not directly on the point as towhether the report of the first commission should be set asidewhile issuing the second commission. In the other Madrasdecision, it was, of course, observed that the report of thefirst Commissioner should be `wlped out altogether' and the `..y\!

Court should look into the second report only as if the firstreport had never been made. However, a Division Bench ofPatna High Court in Shib Charon Schu a Others vs. SordoPrasod a Another (Aln ]937 Par 670J refused to recogn.ize theabove Madras High Court view as an authority for theproposition that the first Commissioner's report should orshould not be wiped out and treated as nonrest before asecond Commission was issued. In that case, the contentionraised by the defendants was that, when a Judge issues acommission, if he is dissatisfied with the report of theCommissioner and deems fit to direct a second commissionto issue, he should wipe the first Commissioner's report off therecord entirely, treating it as not being evidence. In regardto such submission, the Bench observed as follows:-

"There is nothing in 026, R.10, Civil P.C. tojustify such a contention. It is in the bower Of the trialCourt to send out a second or even a thirdcommission. and when all the materials ore beforethe Court lt may dr the time Of deliverfna ]udamentatlach very little or no weiaht to the firstCommissioner's reDorf, but this is very far from savinathdr this amounts to reauirina the first reDol+ to bewiped out Of the record and not considered asevidence. That the argumenl is entlrely unsound isseen on considering what, if it were true, `^rould bethe position in the case`Of an Appellate Court. Thefirst Court's decision on the matter Of fact is not finaland lf the contention were lo be accepted, ffwould prevent on Appellote Court from raking Infoconsidering the first Commissioner's repolt : thisconsideration alone is sufficient to dernonstrc[te thefallacy Of the orgumenl ........... " / emphasis added /.

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]4. Refem.ng to and agreeing with the above DivisionBench judgment of Patna High Court, the High Court ofPun}ab & Haryana .in Chofu Mauju vs. Gurbhdian Slngh (AIR

1972 P&B 265) in paragraphs 2 and 3 observed as follows :- "lf, rightly or wongly, more than onecommission are Issued for legal investigot!on lnrespect Of the some mcltter, the Court has nojurisdiction to exclude from the evidence in the caseany one Of the reports submftled by theCommissioners unless oH the porlies lo the soft \^/antthe porliculor evidence to be excluded.

The report Of each Commissioner underOrder 26, Rules 9 and 10 is nothing more thanevidence on which either Of the porlies may or maynot rely or which may or may not find favour with theCourt wholly or porliolly."

I5. Taking note of the observation made in both theabove decisions, the Kerala High Court in ltydru vs.GovindankuHy Nair (AIR 1982 Ker. 49) observed as follows..- "Rule 10(2) prescribes thdr the report Ofthe Commissioner and the evidence rdken by himshall be evidence in the suit and shall form part Ofthe record. When ff is so Prescribed. can the Courtefface it from record bv whdr is often called setrlnaaside the report. In the absence Of sDeclflc Powerconferred therefor by the statute itself? Sub-rule (31does not specifically Provide for wit)ina out evidencewhich is already Dart Of the record: it onlycontemplates a further enauirv and therefore afurther report. `^rhieh will also become evidence andDart Of the record by virtue Of sub-rule /2)................ " ( emphasis added ).

J6. Quoting with approval the observation madeabove, a Single Bench of the same High Court in Dr. P.

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Subramonic\m vs. K.S.i. Board & Others (AIR 1988

Ker. 769)sLipro made the following further observation: - "Now, if the mandate Of the statute is that thereport of the Commissioner shall be treated asevidence in the suit, how can any courr set it asideor wipe it out unless it is authorized lo do thdr also. bvthe statute? As already noticed. Rules 10 and 12 donot authorize the court lo set aside a commissionrepoit which 11 ls reaulred to heal as evidence : therules only Dermil the orderina Of "further enauirv"where the report olreadv received is unsatisfaclow.A po\^rer to order further enquiry into a matter isentirely different from a power to set aside or wipeout thdr which has already become part Of theevidenee in the suit as a resum Of the initial enqutryand the mandate of the statute." /emphasis addecl/.

17. To the same effect are the following observationsmade by a Division Bench of On.ssa High Court in Smt.I.altoomani Mohanty vs. First Addl. District Judge, Cutlack aothers (AIR 1996 0ri. 141) ..- "lt is now well settled thor the report Of a surveyknowing Commissioner is nothing more thanevidence in a case. It is one of I.he items ofevidence amongst other evidence adduced or to beadduced by the ooriies in the suit. The eviclenliaryvalue of the report would be iudged by the court`^rhife evaluatina the entire evidence on record ..... "( emphas.is added ).

18. Thus, the clear view consl.stently expressed by thedifferent High Courts in the various decisi.ons cited above,hardly leaves any room for controversy in the matter. It musttherefore be taken to be a fairty well-settled position in lawthat if a report submitted by a Commissioner appointed .e <=1 -- under Order XXVI Rule 10 is found to be deficient in respectof any item, the Court is empowered to call forsupplementary report in addition to what has already comeon record and the evidentiary value of such report has to beassessed and judged while evaluating the entire evidenceon record J9. The above discussion thus leads to the conclusionthat the learned trial Court acted illegally and in excess ofjurisdiction vested in it in setting aside the first Commissioner'sreport on the ground that the report was deficient and didnot answer the points in controversy. The illegality sodemonstrated further goes to show that the impugned orderis also contrary to the well-established principle and abjectbehind Sec.115. This therefore, goes to show that the case inhand falls within the ambit and scope of any of the threealternative clauses of Sec.115.

20. The further question for consideration is, whetherthe case in hand is also covered by the proviso added tothe Section. In other words, the question is whether theimpugned order if it had been made in favour of thePetitioner, would have given finality to the suit or theproceedings. The proceedings in question in the case, itmay be recalled, relate to the report submitted by the Amin <J---

Commissioner appointed by the learned trial Court toinspect the suit land so as to ascertain its identity and theobjection filed by the parties to it. The objection filed by thedefendant/Respondent was to the effect that the reportbeing false and biased was liable to be set aside. In thereply to the objection filed on behalf of therevision/Petitioner, on the other hand, it was contended thatthe local inspection was done in presence of both partiesand not behind their back. As such, the objection filed bythe defendant/Respondent was actuated by a malafideintention to thwart the course of law. A prayer wasaccordingly made for rejecting the objection. In thisbackdrop it is the contention of the learned Counsel for thePetitioner that if the impugned order had been made infavour of the Petitioner, there would have been no occasionto set aside the report. Such approach, it was furthercontended, would not only be in conformity with the well-established principle of law, but also would have givenfinality to the proceedings. In the alternative, it wascontended by the ld. Counsel that even otherwise, thepetition is one under Sec.115 CPC read with Art.227 of theConstitution and this Court, in exercise of the wide powersavailable under Art. 227 could interfere in the matter in the ®

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interest of justice so as to set n.ght an order, which has beenpassed illegally, and arbitrarily against the well-establishedprinciple of law.

There is no doubt that when the test formulatedby the Apex Court in above cited Shiv Shokti. Coop Housing Soci.ely case [AJR 2003 SC 2434) supro is applied to the factsof the case in hand, the answer to the question as towhether the interlocutory order under challenge in thepresent proceedings would, if it were made in favour of therevision Petitioner, have given finality to the proceedings,would be in the affirmative. Besides, even the alternativesubmission made by the ld. Counsel does not appear to bedevoid of any force particularly in view of the fact that thepower of this Court under Art. 227 of the Constitution whichthe Petitioner has also invoked in the present proceedingsare wider than the power of revision under Sec.115 of theCode. It is the well-settled position of law that the power ofsuperintendence of the High Court under Art. 227 of theConstitution is much wider than the power of revision u/S.115of the C.P.C. and the limitations which are applicable incase of power of revision u/S.115 CPC do not apply to thesupervisory jurisdiction of the High Court under Art. 227 of theConstitution. Of course it is also well-recognized principle ®®

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that the supervisory power under Art. 227 of the Constitutionis to be span.ngly used and such power should not be usedfor correcting a mere error. In this regard, it might be notedthat it has already been demonstrated above that theimpugned order is not in conformity with the relatedprovisions contained in the order and also the well-established principles of law on the point. In view of this, it ismanifest that the limitation placed on the exercise of powervested in High Court under Art. 227 of the Constitution wouldnot extend to cases where the discretion exercised by thelower Court is found to be not only arbitrary but also againstthe well established principle of law as in the present case.21. Hence, for the reasons given and the observationsmade in the foregoing discussions, it follows that the orderimpugned herein suffers from legal infirmity, and interferenceof this Court is called for, so as to set right the same inexercise of revisional jurisdiction vested in this Court underSec.115 CPC., as well as the supervisory jurisdiction similarlyvested in this Court under Art. 227 of the Constitution.

22. In the result, the impugned order is hereby setaside. The learned trial Court shall issue an order to tr\9 sameCommissioner to inspect the suit land once again andsubmit an additional report in respect of the deficiency detected in the report already submitted. It is needless tosay that it would be open to the opposite parties to avail ofthe services of any other survey-knowing Commissioner in thematter, and if any other report is made available, the samemay be considered in accordance with law.

The records of the lower Court be returnedforthwith.

( A. P. Subba )Judge0211212006