Judgment 1. Theabove civil revision petition is directed against the fair and decretal order dated 13.1.1998 made in I.A.No.1807 of 1997 in O.S.No.229 of 1995 by the Court of Additional District Munsif, Ramanathapuram, thereby dismissing the application filed under O.26, Rule 9 of C.P.C., thus declining to re-issue the commission already issued by the court below. 2. The petitioners are the defendants in the suit filed by the respondents for permanent injunction restraining the petitioners/defendants from in any manner interfering with the peaceful possession and enjoyment of the suit properties, the well located therein and further for a mandatory injunction to close the outlets in the southern wall of the petitioners door, and to remove the drainage channel put up therein by the petitioners/defendants. 3. Today when the above civil revision petition has been taken up for consideration, the learned counsel appearing for the petitioners would be present but on the other side neither the respondents nor their counsel on record appeared before this Court and hence hearing the learned counsel for the petitioner and perusing the records placed before this Court, the following orders, are passed. 4. The learned counsel for the petitioners would contend that though a commission had been appointed earlier, the petitioners were not able to make proper representation before the commissioner since the very appointment of the commission by the lower court was an ex parte one and even the commissioner thus appointed ex parte did not have the courtesy to issue notice to these petitioners prior to inspecting the suit locality and hence the petitioners especially in view of the fact that the first petitioner is a blind person and the second petitioner is his daughter and being an helpless lady, they were left with no option but to seek for the re-issue of the same commission in order to point out certain salient features on ground including a well in the suit locality. 5. The learned counsel for the petitioners would cite many judgments delivered by different courts including this Court in consummation of his argument that the re-issue of the commission when sought for, courts should be liberal in ordering the same for ascertaining the facts on grounds at any stage of the suit prior to the pronouncement of the judgment. 6. 5. The learned counsel for the petitioners would cite many judgments delivered by different courts including this Court in consummation of his argument that the re-issue of the commission when sought for, courts should be liberal in ordering the same for ascertaining the facts on grounds at any stage of the suit prior to the pronouncement of the judgment. 6. The learned counsel for the petitioners would cite a decision reported in Chaitan Das v. Smt. Purnabasi Pattnayak and others Chaitan Das v. Smt. Purnabasi Pattnayak and others Chaitan Das v. Smt. Purnabasi Pattnayak and others , A.I.R. 1988 Ori. 52 wherein it is categorically helds regarding compliance of O.26, Rule 18 of C.P.C. that, “if no notice is served on any of the parties to the suit to appear before the survey knowing commissioner at the time of local investigation, the result of such local investigation, namely, the report and the map, cannot be accepted as evidence.“ In the next decision cited by the learned counsel for the petitioners is reported in Jamil Ahmed Taban and others v. Must.Khair-Ul-Nisa and others Jamil Ahmed Taban and others v. Must.Khair-Ul-Nisa and others Jamil Ahmed Taban and others v. Must.Khair-Ul-Nisa and others , A.I.R. 1970 Del. 205 wherein also the same point is stressed. 7. The third decision cited by the learned counsel for the petitioners is reported in Mandera Mukherjee v. Sachindra Chandra , A.I.R. 1962 Pat. 211 wherein it has been held: “Court appointing commissioner without notice to parties is without jurisdiction” and would further contend that ‘the court shall direct that the parties to the suit shall appear before the commissioner in person or by their agents or pleaders “and” under Rule 10(2) of O.26 of the Code of Civil Procedure, the report of a commissioner is evidence and any evidence recorded by a Pleader Commissioner, without notice to the parties to the suit, cannot be used as evidence at all.” 8. The other decision reported in Mahendranath Parida v. Purnananda Parida , A.I.R. 1988 Ori. 248 submitted on behalf of the petitioners by their learned counsel is pertaining to the point as to when the appointment of the commissioner may be made and would point out that “ordinarily in such type of cases local investigation should not be directed to the stage after the closure of the evidence. 248 submitted on behalf of the petitioners by their learned counsel is pertaining to the point as to when the appointment of the commissioner may be made and would point out that “ordinarily in such type of cases local investigation should not be directed to the stage after the closure of the evidence. But that does not mean that in no circumstances can local investigation be sought for after the evidence is closed. A party has choice and a right to examine a survey knowing person after getting the identification or measurement privately done by him.” 9. The other decision cited by the learned counsel for the petitioner is reported in Sivaraman v. V.C.Narayanan Sivaraman v. V.C.Narayanan Sivaraman v. V.C.Narayanan, A.I.R. 1987 Ker. 156 wherein it is held that “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 note details which have been omitted by him, when he made the first report. “Further inquiry to be made” contemplated by O.26, Rule 10(3) 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 same commissioner to remedy the defects.” 10. Ultimately, the learned counsel for the petitioners would end up his citations with 2 cases one an unreported judgment delivered by this Court in C.RP.No. 1834 of 1989, dated 4.5.1990, wherein it has been held that “even after reserving the case for judgment, it could be re-opened and the commission ordered in order to ascertain the ground realities and the other judgment cited by the petitioners’ counsel is reported in K. Viswanathan v. Shanmugham Mudaliar and another K. Viswanathan v. Shanmugham Mudaliar and another K. Viswanathan v. Shanmugham Mudaliar and another , 99 L. W. 293 wherein it has been held by this Court that “even the court could direct further enquiry - scrapping of the report which is not proper and examining the Commissioner”. 11. 11. A perusal of the order passed by the lower court would indicate that there had already been a commission appointed and the commissioner had also filed his report and in the commission report it is indicated that the second petitioner herein was also present at the spot, that in spite of the case having been posted on 29.9.1995 for objections of the petitioners if any regarding the report of the commissioner no such objection had been made on the part of the petitioners either questioning the validity of the commissioners appointment or the veracity of his statement and since already the petitioners have been once set ex parte in the suit on their application filed in I.A.No.1061 of 1997, the said ex parte decree had been set aside on 24.10.1997 and they were allowed to participate in the further proceedings of the case and under such circumstances the defendants at the stage of trial have come forward to file the said application to reissue the commission and hence concluding that such an application was not only proper but also unnecessary, the lower court has declined to reissue the commission, thus dismissing the application filed by the petitioners. 12. The lower court should note that it is not relevant point for consideration whether or not the petitioners were present at the spot, at the time that the commissioner inspected the suit locality, but whether the court below issued the necessary notice as contemplated by law on the petitioner, which is to be considered paramountly. The court cannot be guided by such hypothetical remarks made in the commissioners report to the effect that at the time of the visit of the commissioner to the suit locality, the second petitioner was present, without caring to consider the statutory obligation to serve the notice on the petitioners prior to deciding the matter, especially in accepting the Commissioners report as an evidence. Such an attitude has been deprecated and condemned time and again by the upper forum of law as it comes to be known from the above decisions cited by the learned counsel for the petitioners. 13. Such an attitude has been deprecated and condemned time and again by the upper forum of law as it comes to be known from the above decisions cited by the learned counsel for the petitioners. 13. Secondly, the delay committed or the lethargic attitude said to have been adopted by the petitioners in having not come forward to file the said application in time in spite of an opportunity having been afforded for them to file their objections, fixing the time for that purpose by the lower court would not also hold water in the sense that the lower court cannot overcome the hurdle placed or obligation warranted by Law to issue notice to the parties concerned. It is not only seen that the lower court has not bothered about to issue the notice to the petitioners but also it is pathetic to note that the learned commissioner got appointed by the court also did not care about the obligation imposed on him to issue notice to the respondent therein, prior to inspecting the suit locality. Not even an attempt is alleged to have been made either by the lower court or by the learned Advocate Commissioner in the instant case and such attitudes are highly deplorable and dissented. 14. Finally, the petitioners being defendants to the suit having been already once set ex parte and on an application to set aside the said order allowing the same, they have been allowed to participate in the further proceedings of the suit is in no way connected to the matter in issue, since the point for consideration, so far as the subject matter is concerned, is whether the commission already appointed by the lower court should be re-issued for the purpose sought for by the petitioner or not. Through many judicial pronouncements, the upper forum of law have made it quite clear that it is always desirable, when a commission is sought to be appointed, for courts to be liberal in such appointments and on sufficient reasons either to bring to fore new set of facts or to give enough participation for a party, which had not been adequately represented before the commissioner during his visit. The re-issue is to be ordered liberally and that there is no such stage of the suit within which either issue of such commission or the re-issue of the same could be restricted but prior to delivering the judgment even in a matter, which is reserved for judgment reopening the case, such appointment of the commission or re-issue of the same could be ordered by civil courts. In spite of such telling versions available, it is amazing to note that the lower court has refused to re-issue the commission, especially, when it was sought for on ground that the petitioners were not at all issued with the notice of the appointment of the commission nor participated in any manner. 15. In the above circumstances, I see no reason whatever, in the order of the lower court so far as dismissing the application filed by the petitioners for the re-issue of the commission is concerned and I am only prompted to set aside the order made by the court below, which is bereft of reasons and it is inconsistent and perverse. 16. In result, the above civil revision petition is allowed, setting aside the fair and decretal order dated 13.1.1998 made in I.A.No.1807 of 1997 in O.S.No.229 of 1995 by the court of Additional District Munsif, Ramanathapuram, However, in the circumstances of the case, there shall be no order as to costs. Consequently, C.M.P.No.4803 of 1998 is closed.