Judgment :- S.S. SUBRAMANI, J. ( 1 ) RESPONDENT in a. S. No. 27 of 1999 on the file of Subordinate judges Court, Namakkal is the revision petitioner herein. ( 2 ) THE facts that are necessary for disposal of this revision could be summarised thus.-petitioner herein is plaintiff, who filed the suit o. S. No. 263 of 1988 on the file of District munsifs Court, Namakkal, for permanent prohibitory injunction restraining defendant from interfering in his possession of the property and also to restrain defendant from blasting rocks in their property, which is injurious to plaintiffs enjoyment of his property and for consequently reliefs. ( 3 ) THE suit was seriously opposed by respondent herein and the Trial Court took oral and documentary evidence. It pronounced judgment decreeing the suit on 29. 1. 1999. Before pronouncing judgment, Trial Court has also taken into consideration the report of the commissioner, which are marked as Exs. C-1 and C-2. No objection was filed by respondent herein to that report and plan. After evaluating entire evidence, Trial Court came to the conclusion that blasting of rocks is dangerous and the broken stones enters plaintiffs property and the same is liable to be prevented. ( 4 ) AGAINST the decision of Trial Court, respondent preferred A. S. No. 27 of 1999 on the file of Subordinate Judges Court, namakkal. Pending appeal, respondent filed i. A. No. 139 of 1999 for issuance of Commission which was allowed by the lower Appellate court. In his affidavit in support of the application for issuance of commission, he stated that Commissioner has been deputed to verify, while using explosives, the broken rocks or splinters are thrown to plaintiffs property and he wanted the Commissioner to verify the same when it is being used in the property. According to him, he is using scientific methods under the mining regulations, which fact was not noted or considered by the Commissioner, who was deputed by the Trial Court. According to him, he is using scientific methods under the mining regulations, which fact was not noted or considered by the Commissioner, who was deputed by the Trial Court. ( 5 ) IN the objection to interlocutory application, petitioner contended that the application itself is not maintainable especially when respondent herein has not objected earlier commissioners report and there is no change of circumstances to have reissuance of new commission, it is further argued that this question also would have been sought to be ascertained by the very same Commissioner, who has visited the property while the case was pending before the Trial Court. It was further contended in the objection that when the Commissioner deputed by Trial Court inspected the property, respondent herein was also present and has taken note of all details including submissions made by respondent herein and only thereafter he filed his report. It is further argued that lower Court should not have allowed this application at this stage when the appeal itself was not heard. Even if Appellate Court has power to issued commission that power is to be exercised only sparingly and that too only if it finds that the evidence on record are not sufficient. Appellate Court converted itself as trial Court. ( 6 ) LOWER Court by the impugned order allowed the application, which is challenged in this revision petition. Since caveat was entered, I heard the revision itself at the time of admission, ( 7 ) LEARNED counsel for the petitioner submitted that the appellate Court can issue commission only very rarely and this is not such a case. Even if the Appellate Court got power for issue of commission, that power could be exercised only when the entire appeal is heard and when Court finds that on the basis of available evidence, it cannot pronounce judgment, by taking additional evidence in appeal, appellate Court should not convert itself as trial Court. It is further submitted that before issue of commission by Appellate Court, applicant will have to satisfy the Court as to whether he was prevented from taking out commission, for the relief stated therein, by the Trial Court. It is further submitted that before issue of commission by Appellate Court, applicant will have to satisfy the Court as to whether he was prevented from taking out commission, for the relief stated therein, by the Trial Court. When there is already commissioners report and plan before the Trial court, prepared in the presence of respondent himself and which is not objected, the validity or satisfactory nature of the same will have to be considered first and lower Appellate Court should not have allowed the same for mere asking for the same. ( 8 ) AS against the said contention, learned counsel for respondents submitted that issue of commission is not coming under Order 41, rule 27 of Code of Civil Procedure but power exercised under Section 107 of Code of Civil procedure. If the power is exercised under section 107 of Code of Civil Procedure, it cannot be revised under Section 115 of Code of civil Procedure as one without jurisdiction. It is further submitted that issue of commission will not amount to a case decided and therefore, revision under Section 115 is also not maintainable. ( 9 ) 1 heard the Counsel on both sides. Petitioner herein filed suit for permanent prohibitory injunction and the Trial Court after taking oral and documentary evidence including issue of commission decreed the suit in favour of petitioner. It is not the case of respondents that they did not have any opportunity to adduce evidence. The purpose of taking out commission is to take evidence. Naturally, applicant will have to satisfy that he was prevented from sufficient cause for not making such an application or for not getting report before Trial court. It is not me case where Appellate Court found that it was not in a position to pronounce judgment on the available materials. Even if the provisions of Order 41, Rule 27 do not apply and the Appellate Court is exercising power under Section 107, Civil Procedure code in appointing Commissioner, 1 think that appellate Court totally ignored the conduct of applicant in not seeking appointment of Commissioner at the trial stage. In the decision reported in Pappayye ammal v. Subbulakshmi Ammol, their Lordships held thus. "the appointment of a Commissioner in appeal is a rarity and is seldom resorted to. In the decision reported in Pappayye ammal v. Subbulakshmi Ammol, their Lordships held thus. "the appointment of a Commissioner in appeal is a rarity and is seldom resorted to. " (Italics supplied)IN the above decision, their Lordships relied on earlier decision reported in T. R. Rajagopala iyer v. "ramachander in that case their Lordships have considered the scope of Section 107 of Code of Civil Procedure and held thus :". . . . IT is true that Section 107 (2), CPC gives the Appellate Court the same powers and the same duties as nearly as may be as are conferred and imposed by the code on Courts of original jurisdiction in respect of suits instituted in them. Wide as the phraseology of this sub-section may appear, 1 am inclined to think that when sub-section (1) and the matters mentioned therein are kept in view, the power of the Appellate Court under sub-section (2) should be understood not as widely as it may prima facie appear to justify. In any case, I think assuming that Section 107 (2) authorises the appellate court to appoint a Commissioner for inspection, that is a power which should be very sparingly used and only in the interests of justice. . "on the basis of these decisions, we have to find out whether circumstances have been made out for the issuance of commission in an appeal? ( 10 ) BEFORE the Trial Court also one of the main issue that was considered was, how far the blasting of rocks, will be injurious to plaintiffs property. Commissioners report which is marked in the Trial Court as Exs. C-1 to C-3 gives a real pictures as to the distance between the place of blasting and plaintiffs property and how far plaintiffs building is affected. Two plans are also prepared by the commissioner. When law is declared that such a power is to be exercised sparingly, naturally, it follows that respondent herein has to show exceptional circumstances for issuance of commission. In the affidavit in support of his application, he does not disclose any exceptional circumstances nor any ground is made out for the issuance of commission. In fact present issuance of commission is for the very same purpose for which a Commissioner was deputed by the Civil Court. In the affidavit in support of his application, he does not disclose any exceptional circumstances nor any ground is made out for the issuance of commission. In fact present issuance of commission is for the very same purpose for which a Commissioner was deputed by the Civil Court. When that report has been accepted by the Trial Court for the very same purpose issue of another commission will be one without jurisdiction. Unless Appellate court finds the report of the Commissioner is invalid or it requires further information, it cannot issue another commission. In this connection, it is also submitted by the revision petitioner that the Commissioners report and plan was never objected by respondents herein. As held in Pappayye Ammal v. Subbulakshmi ammal (supra), the present case cannot be said as rare case or the order is issued in the interest of justice. ( 11 ) APPEAL is also kept pending and the same is not heard till date. In such circumstances, such an order can only be termed as illegal and the same is not recognised under procedural law of our land. Paragraph 8 in the decision of Pappayee Ammal case (supra), is relevant for our purpose, which read thus,"8. Mr. Sivasubramaniam, learned counsel for the respondents herein submits that there is no prohibition available in the procedural law of the land which ties the hands of the Appellate court thereby denying the opportunity of appointing another Commissioner in an application to go into the question of the existence or otherwise of the physical features of the property in question. In the instant case, he submits, it is only by exercising the discretion vested with the lower Appellate Court under section 151, Civil P. C. the lower Appellate Court had passed an order and when such a discretion had been exercised judicially, the Revisional court cannot go into the said matter and say that the said discretion had been exercised arbitrarily or capriciously. This Court does realise that there is some force in the arguments advanced by Mr. Sivasuramaniam. It is relevant in this connection to note that no objection seems to have been raised at all during the stage of the trial for the Commissioners report. This Court does realise that there is some force in the arguments advanced by Mr. Sivasuramaniam. It is relevant in this connection to note that no objection seems to have been raised at all during the stage of the trial for the Commissioners report. What is more, the appeal itself had been pending and when the Commissioners report had been accepted and a judgment had been rendered by the Trial Court and that was the subject-matter of the appeal an application has been filed for the appointment of a Commissioner on a bald allegation that the physical features of the property in question had not been gone into and that allegation had been stoutly denied in the counter that had been filed to the said petition. When the lower appellate Court had passed an order during the stage of the pendency of the appeal before it and when it is common ground that there had been no objection filed before the Trial court for the report of the Commissioner who was appointed for the very same purpose for which an order enabling a new Commissioner has been passed by the lower appellate court, this Court is certainly of the opinion that the remedy that had been granted by the lower Appellate Court by way of an order is one which is certainly not in the interest of justice, nor is one which may be recognised by the procedural law of the land either under Order 41, Rule 27, CPC or under order 25 Rule 9, CPC read with Section 107, CPC. " (Italics supplied)I feel that the impugned order is one without jurisdiction ( 12 ) LEARNED Counsel for petitioner relying on the decision reported in Ram Dihal Lal v. Lakhpat Lal, submitted that the revision itself is not maintainable since the Court is exercising power under Section 107 of Code of civil Procedure. When an order is passed with jurisdiction, such an order is not liable to be revised by this Court. ( 13 ) I do not think that the submission of learned Counsel could be accepted. When a power is given to the Appellate Court, how that power is to be exercised is the matter in issue. The discretion will have to be exercised judicially and not arbitrarily. Court can exercise the discretion only in the interest of justice and not arbitrarily. When a power is given to the Appellate Court, how that power is to be exercised is the matter in issue. The discretion will have to be exercised judicially and not arbitrarily. Court can exercise the discretion only in the interest of justice and not arbitrarily. It is also to be exercised in accordance with procedural law. When no exceptional case has been made out and when a report is already accepted by the trial court, for the same purpose, if another commission is issued that will be encouraging abuse of process of court and not in the interest of justice. When lower court has encouraged abuse of process and has committed illegality that is liable to be rectified under Section 115 of Code of Civil Procedure ( 14 ) A further argument was also taken by the learned Counsel for respondent that under Section 115, it is not a case decided and consequently the revision is not maintainable. If I am to accept this argument, 1 will be perpetuating illegality committed by the lower court. It is well settled that a commission cannot be issued for the second time for the same purpose when there is already report and the same was accepted by the Trial Court. It will be an act without jurisdiction. ( 15 ) FURTHER argument was also taken by the Counsel for the respondent that no prejudice will be caused by getting a report and the question whether the report to be relied on or not is the matter to be decided by the Appellate Court when the appeal is heard. The submission is also without any merits. As rightly contended by the learned Counsel for petitioner, an Appellate court should not be converted into Trial Court on the mere asking of one of the parties. Commissioners report on local inspection becomes part of the evidence under Civil Procedure Code. The question is whether such an evidence is allowed to be taken. In view of the above mentioned decisions, I hold that the lower Court committed illegality and the order of lower Court is to be set aside. ( 16 ) IN the result, the impugned order is set aside and the revision petition is allowed. Appellate Court is directed to dispose of the appeal on the basis of available evidence. There will be no order as to costs. ( 16 ) IN the result, the impugned order is set aside and the revision petition is allowed. Appellate Court is directed to dispose of the appeal on the basis of available evidence. There will be no order as to costs. Consequently, c. M. P. No. 9364 of 1999 is also dismissed. Petition allowed.