CRP(MD)/2480/2026 of Senthil Kumar Vs Mohan Vadivel on 22 September 2026

O R D E R

This Civil Revision Petition is filed challenging the order, dated 12/06/2026 passed in I.A.No.7 of 2025 in I.A.No.1 of 2024 in O.S.No.113 of 2024 by the Additional District Judge, Ramanathapuram.

2. The petitioner is the first defendant and the second respondent is the second defendant in the suit. The suit has been filed by the first respondent herein as plaintiff, for declaration and recovery of possession. A petition under Order XXVI Rule 13 of the Code of Civil Procedure, seeking appointment of an Advocate Commissioner to inspect the suit property and file a report. The trial Court allowed the said application and appointed one Thirumalai Kumar, as an Advocate Commissioner to inspect the property and file his report.

3. According to the petitioner, the previous counsel on record had not informed him about the appointment of the Advocate Commissioner or the proposed inspection of the suit property. Thereafter, the Advocate Commissioner issued notice informing the petitioner that he would inspect the property on 30/05/2025. Immediately on receipt of the said notice, the petitioner sent a letter dated 27/05/2025 stating that his counsel had not informed him about the proceedings and requesting one month's time to enable him to make necessary arrangements. The said letter was received by the Advocate Commissioner on 28/05/2025, as evidenced by the acknowledgement produced by the petitioner. However, despite the receipt of the said objection, the Advocate Commissioner proceeded to inspect the suit property in his absence and thereafter, filed a report stating that the letter sent by the petitioner was received only after the inspection. Aggrieved by the same, the petitioner immediately filed a petition seeking to reopen the proceedings, scrap the Commissioner's report and appoint a fresh Advocate Commissioner. The said petition was dismissed by the trial Court.

4. The learned counsel for the petitioner submitted that the trial Court failed to appreciate the material documents produced by the petitioner, particularly the acknowledgement evidencing receipt of the letter by the Advocate Commissioner on 28/05/2025 and in-spite of the petitioner's objection, the Advocate Commissioner inspected the property in his absence and filed his report falsely stating that he had received the copy of the letter after inspection which is false. Therefore, he has immediately approached the court and filed a reopen petition with a prayer to scrap the commissioner report and to appoint a another Advocate commissioner. But that petition was dismissed by the trial court stating that the commissioner report was filed on 11/07/2025 and 15 days time was granted to file objection and since the petitioner has not filed any petition, it was closed and after a lapse of four months, he filed a petition to re-open the case in order to drag on the matter and dismissed the petition. It is further submitted that the petitioner had sufficiently explained the delay in filing the petition, as he had to obtain the case bundle from his previous counsel and engage another counsel. Hence, the delay was neither wilful nor wanton and therefore, the petitioner prays for allowing this civil revision petition by setting aside the impugned order passed by the court below.

5. Per contra, the learned counsel for the 1st respondent/plaintiff submitted that the Commissioner report had already been filed on 11/07/2025 and sufficient time of 15 days was granted to the petitioner to file his objection. Since the petitioner failed to file his objection within the stipulated time, the proceedings were closed. It is, therefore, contended that the impugned petition filed after a lapse of four months was only intended to protract the proceedings. It is further submitted that the petitioner's grievance is only that the inspection was conducted in his absence and that he has no objection to the suit property being inspected by the same Commissioner, provided a specific time frame is fixed for completing the inspection and filing the report.

6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent and perused the materials placed on record.

7. The only grievance of the petitioner is that his previous counsel had failed to inform him about the proposed inspection by the Advocate Commissioner. It is not in dispute that the petitioner thereafter sent a letter dated 27/05/2025 requesting the Advocate Commissioner not to proceed with the inspection in his absence. The acknowledgement produced by the petitioner shows that the said communication was received by the Advocate Commissioner on 28/05/2025. The proof of service produced by the petitioner, at page No.65 of the typed set, also supports the said contention.

8. However, the Advocate Commissioner, in his report, has stated that he inspected the property on 30/05/2025 at about 10.30 a.m. and that after returning from the inspection, he received the letter sent by the petitioner/1st defendant. The report further indicates that the Advocate Commissioner had not taken note of any request for postponement of the inspection.

9. The materials placed before this Court clearly establish that the petitioner had requested that the inspection should not be proceeded with in his absence. Admittedly, the inspection was conducted in the absence of the petitioner, who is a party to the proceedings and is entitled to be present during the inspection and to place his objection with regard to the manner in which the inspection is conducted.

10. More importantly, the acknowledgement produced by the petitioner indicates receipt of the communication by the Advocate Commissioner on 28/05/2025. However, the Commissioner's report proceeds on the basis that the said communication was received only after the inspection. The discrepancy assumes significance, particularly when the petitioner has specifically disputed the manner in which the inspection was conducted.

11. The trial Court, while dismissing the petition, has primarily taken into consideration the delay in filing the petition. However, the explanation offered by the petitioner that he had to obtain the case bundle from his previous counsel and engage another counsel cannot be said to be wholly unacceptable. The petitioner has also produced materials to substantiate his contention regarding the prior communication sent to the Advocate Commissioner.

12. In the circumstances, this Court is of the view that the issue relating to the manner in which the inspection was conducted requires to be considered in the interest of a proper adjudication of the suit. The petitioner ought to have been afforded an opportunity to be present at the time of inspection by the Advocate Commissioner, particularly when his request not to proceed with the inspection in his absence had been communicated to the Advocate Commissioner. Therefore, the impugned order passed by the trial Court is liable to be set aside. Consequently, the report submitted by the Advocate Commissioner is also liable to be scrapped and a fresh inspection is required to be conducted.

13. Accordingly, the order passed by the trial Court in I.A.No.7 of 2025 in I.A.No.1 of 2025 in O.S.No.113 of 2024 is set aside. The Commission report already filed is scrapped. The trial Court is directed to appoint a fresh Advocate Commissioner to inspect the suit property and file a fresh report. The fresh Advocate Commissioner shall complete the inspection and submit the report within a period of one month from the date of receipt of a copy of this order. The petitioner shall pay the remuneration of the Advocate Commissioner without any delay.

14. With the above observations and directions, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.

22.09.2026 Index : Yes / No Internet : Yes / No er To,

1. The Additional District Judge, Ramanathapuram.

2. The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.

R.POORNIMA, J. er

CRP(MD)No.2480 of 2026 22/09/2026