UMMER Vs. MUHAMMED

JUDGEMENT

(1.) What is the condition precedent for the issue of a second commission under O.26 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:

(3.) In Ramachar v. Krishnachar ( AIR 1949 Mad. 612 ) Subba Rao J. (as be then was) has held: