Judgment :- 1. The 3rd defendant-tenant is the petitioner in this civil revision. The suit was filed by the 1st respondent-plaintiff, the landlord of the building, for a prohibitory injunction to restrain the 2nd respondent (1st defendant in the suit)-Trichur Municipality from granting licence to the petitioner and the 3rd respondent for conducting an ice factory in the plaint schedule building let out to them and for a mandatory injunction directing respondents 1 and 3 to remove the electric motors installed in the building and to restore it to its original position. The trial court dismissed the suit. The Ist respondent took the matter in appeal. The Additional District Judge, Trichur who heard the appeal was of the view that the report of the Advocate Commissioner deputed by the trial court'is not sufficient to decide whether the working of the ice factory in the plaint schedule room is destructive or injurious to the building'. Hence the lower appellate court accepted the request of the appellant's counsel for an expert commission. Therefore, the court deputed the Advocate Commissioner appointed by the trial court and also appointed an Assistant Engineer of the PWD. to make a joint inspection of the shop room and submit 'a report as to whether the working of the ice factory in the shop room is destructive or permanently injurious to the plaint schedule building'. The hearing of the appeal was accordingly adjourned by the court. 2. It is the above order of the lower appellant court that is challenged by the 3rd defendant-tenant in this civil revision. The petitioner filed a CMP. to allow him to raise an additional ground that the lower appellate court should have considered the maintainability of the suit as a preliminary issue and decided the same. Two points arise for consideration in this case. They are: (1) Whether the appellate court can consider the maintainability of the suit as a preliminary issue and give a decision; and (2) whether the appellate court can depute the commissioner appointed by the trial court to submit a further report with the assistance of an expert if the circumstances of the case warrant for the same and can this be done without setting aside the report already submitted by the commissioner. 3. Order XIV R.2 of the Civil Procedure Code reads: "2 Court to pronounce judgment on all issues. 3. Order XIV R.2 of the Civil Procedure Code reads: "2 Court to pronounce judgment on all issues. (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." It is only under Order XIV R.2, CPC., that a court can decide a point preliminarily. Then the question is whether the above power can be exercised not only by the trial court but by the appellate court also. In this case, the contention of the learned counsel for the petitioner is that the lower appellate court ought to have disposed of the question of maintainability of the suit preliminarily. Order XIV of the CPC. deals with the settlement of issues and determination of suits on issues of law or issues agreed upon. An issue regarding the maintainability of a suit can no doubt be considered and decided preliminarily. But this only the trial court can do. This is clear from the wording of R.2 itself. What sub-rule (2) of R.2 says is that where issues both of law and of fact arise in the same suit and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, the court may try that issue first. So, it goes without saying that the consideration and disposal of an issue as a preliminary issue arises only in a suit. So, this is a power which the trial court has and the appellate court has not. So, no question of considering a point preliminarily and deciding the same arises in an appeal even if the conditions insisted by R.2(2) of Order XIV of the CPC. are satisfied. So, this is a power which the trial court has and the appellate court has not. So, no question of considering a point preliminarily and deciding the same arises in an appeal even if the conditions insisted by R.2(2) of Order XIV of the CPC. are satisfied. Hence the contention of the learned counsel for the petitioner that the lower appellate court ought to have considered and disposed of the question of maintainability of the suit preliminarily can only be rejected. 4. The next point that arises for consideration is whether the lower appellate court was in the wrong in deputing the commissioner appointed by the trial court to make a further inspection along with an Assistant Engineer and to report whether the working of the ice factory in the shop room will cause any damage to the same. The question is whether the working of the motor installed by the petitioner in the ice factory run by him in the shop room taken on rent will cause any damage to the building. This is a fact which has to be ascertained with the help of an expert. Admittedly, the advocate-commissioner deputed by the trial court was not an expert to report on the above aspect. The plaintiff in the suit can succeed in getting an injunction only if the working of the ice factory in the building will cause damage to the same. So, for disposing of the suit, evidence of an expert is a must. No such evidence was adduced before the trial court. In that case, the appellate court is not without powers to let in evidence in the matter. It was in this connection that the Advocate-Commissioner was again deputed and was directed to make a further local inspection! with the help of an expert. By no stretch of imagination it can be said that the lower appellate court has no power to do this. The setting aside of the report already submitted by the Advocate-Commissioner before the trial court is not necessary to depute him again and direct an expert to assist him. Setting aside of a report arises only when the court is not satisfied with the report of the commissioner. In this case, what the appellate court wanted was only further evidence to enable it to decide one way or other the appeal that arose from a suit for injunction. Setting aside of a report arises only when the court is not satisfied with the report of the commissioner. In this case, what the appellate court wanted was only further evidence to enable it to decide one way or other the appeal that arose from a suit for injunction. So, the order of the lower appellate court directing the Advocate-Commissioner to make a second inspection along with an expert is perfectly legal and valid. 5. In Pappayee Ammal v. Subbulakshmi Ammal (AIR. 1983 Madras 344) it has been held: "The appointment of a Commissioner in appeal is a rarity and is seldom resorted to. Such an appointment is not authorised by 0.41 R.27. The rule relates to additional evidence. Where a Commissioner was appointed by the trial Court to make local inspection of the suit property and no objection to his report was raised at the stage of trial before the trial Court, the appointment of another Commissioner by the appellate Court during the pendency of the appeal for the very same purpose for which the Commissioner had been appointed by the trial court would be invalid as it is neither in the interest of justice nor is it recognised by the provisions of 0.41 R.27 or under 0.26 R.9 read with S.107." (paras. 4,6 and 8) It is clear from the judgment that the affidavit accompanying the petition for appointment of a commissioner filed before the appellate court did not at all clearly set out the purpose for which the appointment of a commissioner was sought. Not only that, in the above case, it was a second commission that was issued by the appellate court and that too without setting aside the commission report submitted before the trial court. In Gagraj v. Ramadhar (AIR. 1975 All. 406) it has been held: "The appellate court has the power to issue a Commission for local inspection in the same manner in which a trial court can act under 0.26 R.9. Thus where the lower appellate court finds that clear demarcation of boundaries is necessary for giving a finding on the question of ownership what it should do is not to remand the entire suit under 0.41, R.23 but issue a commission under 0.26, R.9. The issuance of a commission for local investigation will not necessitate a recourse to the provisions of taking additional evidence under 0.41, R.27." (paras. 4, 5) 6. The issuance of a commission for local investigation will not necessitate a recourse to the provisions of taking additional evidence under 0.41, R.27." (paras. 4, 5) 6. In the result, the civil revision is dismissed. There will be no order as to costs. Dismissed.