CRP(MD)/2807/2026 of Rengaraju Vs Raphel on 15 October 2026

ORDER

This petition is filed against the order dated 23.07.2026 passed in IA.No.3 of 2026 in A.S.No.10 of 2025 on the file of the Subordinate Court, Thuraiyur.

2. The petitioner is the plaintiff in the suit filed before the trial Court seeking a declaration and mandatory injunction for the removal of the encroachment allegedly made by the defendants and for delivery of the encroached portion of the property to the plaintiff. However, the suit was dismissed. Aggrieved by the same, the petitioner preferred an appeal in A.S. No. 10 of 2025, which is pending before the appellate Court. During the pendency of the appeal, the petitioner filed a petition under Order XXVI Rule 9 of the Code of Civil Procedure, seeking appointment of an Advocate Commissioner to inspect the property and note down its physical features. The said petition was dismissed by the appellate Court. Aggrieved by the same, the present petition has been filed.

3. The petitioner contends that the first appellate Court has passed the impugned order with a preconceived and predetermined mind, without properly considering the merits of the case. It is further contended that the trial Court dismissed the suit without properly appreciating the merits of the case. According to the petitioner, the dismissal of the suit as well as the subsequent rejection of the Commission application is improper and unsustainable in law.

4. The learned counsel for the petitioner placed reliance on the judgment of this Court in Subramaniam v. Lakshmi and Others, in C.R.P. No. 726 of 2023, wherein the relevant paragraph reads as follows: “11.The dispute is whether the defendants have encroached upon Survey No.57/2 or Survey No.57/3. This Court is of the considered view that to find out the location of alleged encroachment, appointment of an Advocate Commissioner is absolutely necessary and no prejudice would be caused defendants if this revision is allowed. The question as to whether the plaintiff is entitled to property in Survey Nos.57/2 and whether the defendant encroached into Survey No.57/2 as alleged by plaintiff. In the affidavit filed in support of the I.A.No.1 of 2021, plaintiff assigned reason for non-examining the Surveyor before the trial Court. The reasons stated in the affidavit are satisfactory and bonafide. Since appeal is a continuation of Suit, subject to the other provisions of CPC, the application under Order XXVI Rule 9 is maintainable.”

5. The learned counsel for the petitioner also placed reliance on the judgment of this Court in Veeramuthu Udayar v. Periyasamy (Died) and Others, in C.R.P. (MD) No. 324 of 2024, wherein the relevant paragraph reads as follows: “11.This Court is of the view that the order passed by the trial Court is not proper. Having regard to the relief of mandatory injunction sought for in the suit, it is necessary to ascertain and note down the physical features of the property with the assistance of Taluk Surveyor. Therefore, the order of the trial Court warrants interference and the same is liable to be set aside.”

6. I have heard the learned counsel for the petitioner and perused the materials available on record.

7. The petitioner filed a petition seeking the appointment of an Advocate Commissioner to inspect the suit property, note down its physical features, and to measure the compound wall. The petitioner contended that the appointment of an Advocate Commissioner would not cause any prejudice to the respondents and that such appointment could be made at any stage of the proceedings. However, the trial Court dismissed the petition, observing that the petitioner had failed to establish when the compound wall was constructed and when the alleged encroachment took place. The trial Court further relied on its earlier finding that the petitioner had failed to prove the time of construction of the compound wall. On these grounds, the petition seeking the appointment of an Advocate Commissioner was dismissed.

8. This Court is of the view that the petitioner cannot be permitted to fill up the lacuna in his case by seeking the appointment of an Advocate Commissioner at this stage. The trial Court has rightly dismissed the petition, and this Court finds no valid ground to interfere with the impugned order. Accordingly, the Civil Revision Petition stands dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. 15-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No NS To

1. The Subordinate Court, Thuraiyur,

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

R.POORNIMA, J. NS CRP(MD) No. 2807 of 2026 AND CMP(MD) No. 14390 of 2026 15-10-2026