Judgment :- 1. What is the condition precedent for the issue of a second commission under Order XXVI R.10(3) of the Code of Civil Procedure? This is the point that arises for consideration in this Civil Revision. The short facts of the case shorn of unnecessary details are: The 1st respondent started a granite crushing unit in the immediate vicinity of the petitioner's house. Then the petitioner filed the suit for permanent injunction restraining respondents 1 and 2 from working the machine alleging unbearable nuisance. An ex parte commission was also taken. On the basis of the commission report also the trial court granted a temporary injunction. The 1st respondent filed objections to the commission report and prayed for the setting aside of the report and the issue of a second commission to submit a report regarding the nuisance. The court did not set aside the commission report, but ordered a second commission. The challenge in this Civil Revision is against the above order of the trial court. 2. The impugned order reads: "Heard. I feel that no grounds are made out to set aside the commissioner's report. I feel that in order to report about the objections raised in the above petition and to report about the working of the machinery etc. a new commission has to be issued..." Rule 10(3) of Order XXVI of the Code of Civil Procedure reads: "(3) 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 fit." The Court can issue a second commission only under Order XXVI R.10(3) of the Code. As per the above provision, the Court should, for any reason, be dissatisfied with the proceedings of the commissioner already deputed. The dissatisfaction can be before the submission of the report or after that. No question of setting aside the report arises if the Court was dissatisfied about the work of the commissioner and issued a second commission before he submitted the report. But if a second commission is to be issued after the commissioner already deputed submitted his report can it be done without setting aside the report. Proceedings of the commissioner cannot but include the report of the commissioner if a report has been submitted. But if a second commission is to be issued after the commissioner already deputed submitted his report can it be done without setting aside the report. Proceedings of the commissioner cannot but include the report of the commissioner if a report has been submitted. If the Court is dissatisfied about what the commissioner did, can the report be salvaged simply because the report is not specifically made mention of in R.10(3). Not only that, the Court gets jurisdiction to issue a second commission only if the Court for any reason is dissatisfied with the work of the first commissioner. In this case, not only that the Court did not express any dissatisfaction about the work of the first commissioner it was also held that no grounds are made out to set aside his report. The Court has not even postponed its decision on the question of setting aside the commission report. When the second commission report is also submitted, the Court will have to accept one report and disregard the other. Going by the scheme of the relevant provisions of the Code, this is not something which is contemplated. Simply because R.10(3) does not provide for the setting aside of the first commission report, cannot be said that a second commission can be issued without setting aside the first commission report. If, for example, the Court feels some more details are to be gathered, the Court can depute the same commissioner for the same purpose and in that case, no setting aside of the report already submitted is necessary. At any rate, the Court has no jurisdiction to issue a second commission when it has not only not expressed any dissatisfaction about the work of the first commissioner but has refused to set aside his report. 3. In Ramachar v. Krishnachar (AIR. 1949 Mad, 612) Subba Rao J. (as be then was) has held: "Order appointing a second commissioner, without assigning any reasons why the report of the previous commissioner is ignored, is not only contrary to the provisions of 0.26, R.10(3) but is to be condemned." (Head Note) In Satyanaryana v. T. Jalalah (AIR. 1972 A. P. 265) it has been held: "It does not appear from the order under revision that the learned judge felt that there was any reason for dissatisfaction with the report of the previous Commissioner. 1972 A. P. 265) it has been held: "It does not appear from the order under revision that the learned judge felt that there was any reason for dissatisfaction with the report of the previous Commissioner. If the order disclosed that there was any such dissatisfaction on the part of the Court, I would certainly have been very reluctant to interfere with such an order." (para. 3) In the above decision it has been further held: "There is no jurisdiction is the Court to appoint a second Commissioner without superseding or finding that the proceedings or report of the Commissioner earlier appointed is unsatisfactory and it therefore should not form part of the record." (para. 6) 3. In Ramalingam v. M.V. Ramanathan (AIR. 1978 Karnataka 65) it has been held: "Where a particular matter has already been the subject of investigation and a report has been submitted by a Commissioner in that behalf, another commission for the same purpose should not ordinarily be issued unless upon valid grounds made out by the parties concerned and the previous report is unreliable and therefore should be set aside. Where there was already a report in respect of the same matter, the Court passing the order, for issuance, of second commission did not consider whether there were valid grounds therefor, the reasons for passing the order were not given by the Court and the opposite party was not given an opportunity to challenge the application for issuing a second commission, the order was held to be invalid and was set aside." (Head note) 4. This Court had occasion to consider the question of issue of a second commission in three decisions. In Moidu v. Lekshmi Amma (1968 KLT. 699). This Court, following two Madras decisions, held: "However, the point taken is that so long as the first report and plan remain intact the Court will be confronted, at the time of the trial, with two reports and plans, one got up behind the back of the defendants and the other where both sides have been given notice. 699). This Court, following two Madras decisions, held: "However, the point taken is that so long as the first report and plan remain intact the Court will be confronted, at the time of the trial, with two reports and plans, one got up behind the back of the defendants and the other where both sides have been given notice. The proper thing to do, when a second commission is allowed by the Court to do the same work over again as here, is to set aside the first report and plan since successive commissions without the earlier ones being set aside have been deprecated by at least two rulings of the Madras High Court reported in Ambi v. Kunhikavamma (AIR. 1929 Madras 661) and Kunhi Kutti Ali v. Mohammad Haji (AIR. 1931 Madras 73)." (para.2) In Narayana Guptan v. Madhava Menon (AIR. 1965 Kerala 95) the question that arose for consideration was whether the judgment and decree in the suit have to be set aside for the reason that the Court issued a second commission for the same purpose without setting aside the report of the first commission. The Court held: "In second appeal before me, learned counsel for the appellent reiterated the game ground and contended, that the issue of the second commission, even if done with consent of parties is illegal and is contrary to the provisions of Order XXVI, R.10 and relied on the decisions in Ambi v. Kunhikavamma, (AIR. 1929 Mad. 661) and Kunhi Kutti Ali v. Mohammad Haji (AIR. 1931 Mad. 73). These cases have taken the view, that the issue of a second commission on the same subject-matter without setting aside the report of the first commissioner is, contrary to law. But the Patna High Court in Shib Charan Sahu v. Sarda Prasad (AIR. 1937 Pat. 670) has explained the Madras view. Even in the Madras cases cited, it was not held to be such an illegality as would vitiate the trial and render the judgment liable to be set aside on that ground. In my view, this was only an error, or defect, or irregularity in the proceedings in the suit which did not per se affect the merits of the case and therefore under S.99. CPC. the decree cannot be reversed, or substantially varied and the case cannot be, remanded on that ground." (para. 1) In Hydrose v. Govindankutty (1981 KLT. In my view, this was only an error, or defect, or irregularity in the proceedings in the suit which did not per se affect the merits of the case and therefore under S.99. CPC. the decree cannot be reversed, or substantially varied and the case cannot be, remanded on that ground." (para. 1) In Hydrose v. Govindankutty (1981 KLT. 360) the two earlier decisions of this Court referred to above were distinguished as in that cases the commissions were issued under Order XXVI R.9 of the Code for local investigation. The two commissions issued in the above cases were for scientific investigation under Order XXVI R.10A and on that ground the learned judge held that a second commission can be issued without setting aside the report of the handwriting expert who was appointed as the Commissioner. In the above decision it has been held: "The above discussion leads to the conclusion that whether it be under 0.26 of the Code or under S.45 of the Evidence Act, there is no prohibition as such against making a second reference to a hand-writing expert without setting aside the report of the first; the court has a discretion in the matter. To say so is not to hand over to the alcoholic the key of the distillery and to permit the trial courts to issue commissions galore, but only to distinguish a matter of practice from a matter of law. The discretion is there, of course, to be used with circumspection" (para. 14) As the commission in the case in question was for local inspection and was not issued under Order XXVI R.10A, I distinguish Hydrose's case (1981 KLT. 360) on facts. 5. The order impugned also suffers from another draw-back. No reasons are given for rejecting the objections to the first Commissioner's report and for refusing to set aside the same. So, in the facts and circumstances of this case, I set aside the impugned order and direct the trial court to consider I. A. No. 2015 of 1982 afresh in the light of what is said in this order. Fresh orders are to be passed as expeditiously as possible and, at any rate, within a month from today. 6. The Civil Revision Petition is allowed as above. No costs. Allowed.