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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Order reserved on : 15.12.2025 Order pronounced on : 30.01.2026

CORAM

THE HONOURABLE MR JUSTICE P.B. BALAJI

CRP.No.4166 of 2025

& CMP.Nos.31047 & 21410 of 2025

Jayabalan ... Petitioner

Vs.

Pandiyan ... Respondent

Prayer: Civil Revision Petition filed under Article 227 of Constitution of

India, to set aside the fair and decretal order dated 07.07.2025 passed in

I.A.No.2 of 2025 in A.S.No.33 of 2023 on the file of the Principal Sub-

Court, Ariyalur.

For Petitioner : Mr.Usha Raman

For Respondent : Mr.S.Parthasarathy

for Mr.S.Jim Raj Milto

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ORDER

The 2^nd defendant, who is the appellant in A.S.No.33 of 2023, pending

the said first appeal, moved an application I.A.No. 2 of 2025 under Order

XXVI Rule 9 of the Code of Civil procedure, 1908, seeking appointment of

an Advocate Commissioner to fix the counter claim property and submit a

plan and report with the assistance of the surveyor. The learned Principal

Sub-Court, Ariyalur allowed the said application, as against which, the

respondent/plaintiff has come up by way of this revision petition.

2.I have heard Mr.Usha Raman, learned counsel for the petitioner and

Mr.S.Parthasarathy, learned counsel for Mr.S.Jim Raj Milton, learned

counsel for the respondent.

3.The learned counsel for the revision petitioner, Mr.Usha Raman,

would contend that in a suit filed for permanent injunction in respect of

Survey No.555/800, measuring 3300 sq.ft, the revision petitioner had filed a

counter claim in respect of Survey Nos.555/789, 790 and 802, alleging that

the plaintiff had encroached into the defendant’s property and constructed a

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compound wall and sought for a relief of a mandatory injunction to remove

the said compound wall. Pending the suit, an application for appointment of

Advocate Commissioner was filed in I.A.No.119 of 2009 and a report was

also filed before the Court. An application was taken out for scrapping the

said report of the Advocate Commissioner, which was allowed and the

report of the Commissioner was scrapped. However, the plaintiff did not

take further steps for reissuance of the Advocate Commissioner warrant.

The trial court dismissed the counter claim filed by the defendants, finding

that in the absence of the Commissioner’s report regarding the compound

wall mentioned in the counter claim, it was not possible to grant relief to the

defendants. The trial Court proceeded to decree the suit for permanent

injunction in favour of the respondent/ plaintiff, as against which the first

appeal has been preferred.

4.It is therefore the contention of the learned counsel for the petitioner

that it was not the fault of the petitioner/2^nd defendant as the

respondent/plaintiff did not ensure that the Commissioner warrant was

reissued, pursuant to the report of the Commissioner being scrapped.

Mr.Usha Raman, learned counsel for the petitioner, referring to the schedule

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to the counter claim, would submit that the schedule is not in compliance

with Order VII Rule 3 Code of Civil Procedure, 1908, and the four

boundaries have also not been stated and in such circumstances, the

petitioner cannot be entitled to a decree for mandatory injunction and in

such view of the matter, there was no purpose in appointing an Advocate

Commissioner as prayed for by the respondent/ plaintiff. He would therefore

pray for revision being allowed.

5.Per contra, Mr.S.Parthasarathy, learned counsel appearing for the

respondent/2^nd appellant would contend that the respondent had himself filed

an application for appointment of an Advocate Commissioner and in

I.A.No.119 of 2009, the report of the Commissioner was scrapped and a

new Advocate Commissioner was appointed. However, the plaintiff did not

take any steps to ensure that the newly appointed Commissioner inspected

the pro