IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.10.2025 CORAM:

THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN and C.M.P.No.23384 of 2025 S.Lakshmi ... Petitioner/Defendant Versus R.Sumathi ... Respondent/Plaintiff PRAYER: This Civil Revision Petition is filed under Article 227 of the Constitution India, to allow the Revision Petition and set aside the order and the decreetal order dated 30.07.2025 in I.A.No.2 of 2025, in OS.No.969 of 2024 on the file of the District Munsif and Judicial Magistrate at Sholinganallur.

For Petitioner : Mr.V.Manisekaran For Respondent : Mr.C.Jagadish for Mr.K.S.V.Sethuraman

O R D E R

Unsuccessful defendant has preferred the present Civil Revision Petition.

2. One R.Sumathi, has filed a suit seeking the relief of permanent injunction restraining the defendant, her men, agents and servants or any other persons claiming through her from in any way trespassing to the suit schedule property or in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The defendant filed a written statement, issues were framed and the suit is posted for trial. At this stage, the plaintiff has filed an application under Order XXVI Rule 9 CPC, to appoint an Advocate Commissioner along with Surveyor of the Office of the Thasildar, Shollinganallur and to physically verify, measure and demarcate the suit schedule property taking into consideration, the title documents of both the parties with the FMB sketch and to file a detailed report along with photographs in IA.No.2 of 2025 in OS.No.969 of 2024. Upon hearing either side, the Court below vide order dated 30.07.2025 allowed the petition considering the fact that there is a counter claim by the respondent/defendant to the suit schedule property that the revision petitioner/plaintiff has encroached some portion of the suit schedule property as contended by the defendant. Considering that there is an encroachment of the property and to proceed further it is just and necessary to appoint the Advocate Commissioner in this case.

3. The learned counsel appearing for the revision petitioner/defendant would submit that the Court below allowed the application mechanically without recording specific reasons as to why such appointment of Advocate Commissioner is essential for deciding the real controversy in a suit for bare injunction. The Court below had erred in entertaining and deciding the petition for appointment of Advocate Commissioner, when an earlier petition by the respondent/plaintiff in IA.No.1 of 2024 in OS.No.969 of 2024, for receiving disputed documents was pending enquiry. The Court below is required to hear and decide first the IA.No.1 of 2024 (IA.No.2 of 2023 in the OS.No.697 of 2015) filed by the respondent/plaintiff for “receiving documents.” Before that subsequent IA.No.2 of 2025 for “appointment of Advocate Commissioner” was heard by the Court and orders pronounced on 30.07.2025. The learned counsel for the petitioner/plaintiff further would submit that the respondent/plaintiff was not entitled to argue the case in IA.No.2 of 2025, for pushing the dates and events to the year 2013.

4. The Court below has committed jurisdictional error by mechanically allowing the plea for appointment of Advocate Commissioner without framing specific points for elucidation under Order XXVI Rule 9 of CPC which does not allow using the Court to “create” evidence or calling upon the Court to “generate” evidence. The learned counsel would further submit that there is clear suppression of material facts in the plaint filed in July 2015 as the respondent/plaintiff did not mention, anywhere in her plaint, the enquiry conducted by the Tahsildar in June 2015 and communicating the result thereof, in his office Memo No.L.Dis.No.4782/2015 dated 12.06.2015 confirming encroachment. The present order dated 30.07.2025 helps the respondent/plaintiff to escape the penal results of her wrong submissions in her plaint. There cannot be another survey and in