The court determined that an Advocate Commissioner's report cannot be entirely scrapped but may require further inquiry for a satisfactory resolution in civil proceedings.

ORDER

The present Civil Revision Petition has been filed challenging the decreetal order dated 06.06.2025 passed in I.A.No.5 of 2025 in I.A.No.1 of 2019 in O.S.No.310 of 2008 on the file of the II Additional District Munsif Court, Erode, Erode District.

2. The petitioner herein is the fourth defendant and the first respondent herein is the plaintiff in the suit in O.S.No.310 of 2008. The suit was filed by the first respondent, for a preliminary decree for partition of his 1/4 share in the suit properties, and for a permanent injunction restraining the defendants from putting up construction in the suit properties.

3. The said suit was decreed as prayed for on 25.11.2013. Pursuant to the preliminary decree passed by the II Additional District Munsif, Erode in O.S.No.310 of 2008, the first respondent/plaintiff filed I.A.No.1 of 2019 for division of the suit property by metes and bounds and for allotment of his 1/4 share by appointing an Advocate Commissioner. After conducting inspection, the learned Advocate Commissioner, submitted his report and plan. Aggrieved by the learned Advocate Commissioner’s report, the first respondent herein filed I.A.No.5 of 2019, seeking to scrap the Advocate Commissioner’s report and plan. The petitioner herein filed a counter in the said application stating that the prayer for scrapping the Advocate Commissioner’s report and plan was untenable, since any error found in the Advocate Commissioner’s report and plan, could be rectified by calling for additional report. The petitioner further stated that without notice to him, the Advocate Commissioner inspected the suit property, thereby depriving him of an opportunity to present his side of the case. The petitioner therefore submitted that the application lacked merits and hence deserved to be dismissed.

4. The learned II Additional District Munsif, Erode upon consideration of the materials and records, allowed the I.A.No.5 of 2019, by scrapping the Advocate Commissioner’s report and plan, on the ground that the Advocate Commissioner had failed to measure the property, and in the absence of measurements, equitable division could not be made. Aggrieved by the order passed by the learned Additional District Munsif, the present CRP has been filed.

5. The learned counsel for the petitioner submitted that the II Additional District Munsif, Erode failed to note that there was no necessity to scrap the report of the Advocate Commissioner in entirety. If any additional facts were needed for effective disposal of the petition, the same could have been obtained without scrapping the report.

6. In support of his contention, learned counsel relied on the judgment of this Court in K.Viswanathan vs. D.Shanmugham Mudaliar and another reported in CDJ 1985 MHC 239.

7. Heard learned counsel appearing for both sides and perused the materials available on record.

8. The facts of the case are undisputed. The only issue to be decided in this Civil Revision Petitiion is whether the order passed by the learned II Additional District Munsif, Erode, scrapping the report and plan of the Advocate Commissioner is sustainable or not.

9. As rightly contended by the learned counsel for the petitioner, if the learned II Additional District Munsif, Erode, required additional facts/features for effective disposal of the final decree proceedings, he ought to have directed the Advocate Commissioner, to conduct further enquiry and submit a report. For failure of the Advocate Commissioner, to note down the measurements of the suit properties, the entire report and plan of the Advocate Commissioner ought not to be scrapped. Under order 26, rule 10(2) of CPC, the report of the Advocate Commissioner, is treated a