The appointment of an Advocate Commissioner under Order 26 Rule 9 of the CPC is essential in land disputes where precise measurement or inspection is required to resolve factual discrepancies in extent and title, and such an application should not be rejected merely on grounds of procedural delay.

ORDER :

N. MALA, J.

(1) This Civil Revision Petition is filed against the order dated 13.10.2025 passed in IA.No.4/2025 in AS.No.59/2022 by the learned III Additional Judge, City Civil Court, Chennai, rejecting the petitioners' / plaintiffs' application filed under Order 26 Rule 9 of CPC to appoint an Advocate Commissioner to inspect and measure the plaintiffs' and defendants' properties with the aid of the Taluk Surveyor and to file a Report in the Appeal.

(2) The subject matter of the suit is, land measuring 96 sq.ft [2 x 48 sq.ft.] in New Door No.33C, [Old Door No.13C], Sivan Koil South Mada Street, Villivakkam, Chennai-600 049, in S.No.11A 7B2.

(3) The petitioners herein are the plaintiffs in the suit in OS.No.130/2013, filed for declaration of title, possession, permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property and for mandatory injunction, directing the defendants to demolish the illegally constructed compound wall and pillars in the suit property.

GIST OF THE PLEADINGS OF THE PARTIES:-

(4) The case of the plaintiffs is that the suit property originally belonged to one Vivekanandan. The plaintiffs' father purchased the property measuring 2024 sq.ft., excluding a 3 feet passage on the eastern side, under a registered Sale Deed dated 07.03.1990, in Doc.No.1117 of 1990. According to the plaintiffs, the common passage was enjoyed by the plaintiffs' father and the neighbouring owners, both prior to and after the purchase. While so, the plaintiffs' father filed the suit in OS.No.130/2013, against the defendants since they attempted to interfere with his peaceful possession and enjoyment of the property by putting up illegal constructions. In the suit, the 1^st defendant contended that under a Partition Deed dated 06.05.1981, an extent of 727 sq.ft., including the suit property, was allotted to him and that he subsequently executed a Settlement Deed in favour of the 2^nd defendant, conveying an extent of 833 sq.ft. Since the defendant claimed an excess extent of 106 sq.ft., the plaintiffs filed an application for appointment of an Advocate Commissioner in the suit. However, since the Advocate Commissioner did not take the assistance of a Taluk Surveyor to measure the properties, the plaintiffs filed an application to direct the Surveyor to measure the suit property in consonance with the measurements in the FMB Sketch. The said application was dismissed by the Trial Court. Challenging the said dismissal order, the plaintiffs filed CRP.No.489/2020, and subsequently withdrew the same with a request to expedite the disposal of the suit. Thereafter, the suit was heard and dismissed on 13.12.2021. Aggrieved by the judgment and decree of the Trial Court, the plaintiffs filed the appeal in AS.No.59/2022 before the learned III Additional Judge, City Civil Court, Chennai.

(5) The plaintiffs summoned the Tahsildar, Aminjikarai, to produce records with respect to the suit property. The Surveyor, Aminjikarai Taluk, appeared and tendered evidence as CW1 and produced survey documents relating to measurements of S.Nos.102 and 134. In the appeal, considering the discrepancy in the extent claimed by the defendants and the survey records produced by the Tahsildar, Aminjikarai, the plaintiffs filed an application under Order 26 Rule 9 of CPC to appoint an Advocate Commissioner to inspect and measure the plaintiffs' as well as the defendants' properties with the assistance of the Taluk Surveyor, so as to resolve the controversy in the suit. The Appellate Court, vide impugned order dated 13.10.2025, rejected the application on the ground that the Advocate Commissioner was already appointed by the Trial Court and therefore, there was no necessity to appoint another Advocate Commissioner at the appellate stage. The Appellate Court was of the view that the petition was filed only to drag on the proceedings.. Challenging the impugned order dated 13.10.2025, in IA.No.4/2025 in AS.No