Dismissed¶¶28

Sheikul Akbar v. Mohammed Tahir

Madras HC27 Jun 2025CRP(MD)/617/2022

Case brief

AI extract

What is this about?

Re-issuance of Advocate Commissioner's warrant not permissible; Commissioner's report only a piece of evidence, not conclusive proof; remedy is objection with evidence at trial. Order XXVI Rule 9 CPC; Article 227 Constitution of India. Sheik Akbar v. Mohammed Tahir, Madras High Court (Madurai Bench), C.R.P.(PD)(MD)No.617 of 2022, decided 27.06.2025 (M. Dhandapani, J.); arising from O.S.No.115 of 2018, I.A.No.9 of 2021, Sub Court Tirunelveli; CRP dismissed with liberty, no costs; connected C.M.P.(MD)No.2538 of 2022 closed.

What did the court decide?

Liberty to the petitioner to canvass his defence before the trial Court against the report filed by the Advocate Commissioner by adducing proper evidence; petition dismissed with no costs and the connected miscellaneous petition (C.M.P.(MD)No.2538 of 2022) closed. ¶¶28

Sheikul Akbar Vs Mohammed Tahir — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether, after the Advocate Commissioner had inspected the suit property and filed a report and the petitioner's objections to that report had been accepted, the petitioner could seek re-issuance of the Commissioner's warrant, or whether the trial Court rightly dismissed I.A.No.9 of 2021.

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Court's answer

An Advocate Commissioner is appointed only to note down the physical features of the suit property with a qualified surveyor, and the Commissioner's report is a piece of evidence to enable the Court to arrive at a definite conclusion; it is not conclusive proof in favour of either party.

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Ratio / Principle

A party aggrieved by the Advocate Commissioner's report must raise its grievance by objecting and adducing proper evidence before the trial Court; re-issuance of the Commissioner's warrant is not permissible.

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Key takeaways

The trial Court rightly appreciated the issue and rightly rejected the petitioner's application in I.A.No.9 of 2021 seeking re-issuance of the Commissioner's warrant.ratio¶¶27
The Civil Revision Petition is dismissed, with liberty to the petitioner to canvass his defence before the trial Court against the Advocate Commissioner's report by adducing proper evidence; no costs; the connected miscellaneous petition is closed.ratio¶¶28

Detailed headnote1 paragraphs

Civil Revision Petition under Article 227 of the Constitution of India by the second defendant in O.S.No.115 of 2018 (suit for declaration, recovery of possession and permanent injunction) challenging the fair and decreetal order dated 06.01.2022 of the Sub Court, Tirunelveli in I.A.No.9 of 2021, whereby his application for re-issuance of the Advocate Commissioner's warrant was dismissed. The petitioner had earlier obtained appointment of an Advocate Commissioner under Order XXVI Rule 9 of CPC (I.A.No.227 of 2018); the Commissioner inspected and reported, and the petitioner's objections (I.A.No.7 of 2021) were accepted. He then sought re-measurement on the ground that no notice was issued to him before inspection as he was abroad. Held: an Advocate Commissioner is appointed only to note down the physical features of the suit property with a qualified surveyor; the Commissioner's report is a piece of evidence to enable the Court to arrive at a definite conclusion and is not conclusive proof in favour of either party; a party aggrieved by the report may object to it and adduce proper evidence before the trial Court, and re-issuance of the Commissioner's warrant is not permissible. The trial Court rightly rejected the application. Civil Revision Petition dismissed with liberty to the petitioner to canvass his defence against the Commissioner's report by adducing proper evidence before the trial Court; no costs; connected miscellaneous petition closed.

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C.R..P.(PD)(MD).No.617 of 2022

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 27.06.2025

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CORAM:

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THE HONOURABLE MR.JUSTICE M.DHANDAPANI

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C.R.P.(PD)(MD)No.617 of 2022 and C.M.P.(MD)No.2538 of 2022

Sheik Akbar

...Petitioner

Vs.

1.Mohammed Tahir 2.Syed Ali 3.Mohammed Mydeen ... Respondents

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PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 06.01.2022 in I.A.No.9 of 2021 in O.S.No.115 of 2018 on the file of the Sub Court, Tirunelveli.

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For Petitioner : Mr.Kaushik for Mr.R.Maheswaran For R1 : Mr.V.Meenakshi Sundaram For R2 & R3 : No Appearance

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https://www.mhc.tn.gov.in/judis

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C.R..P.(PD)(MD).No.617 of 2022

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ORDER

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This Civil Revision Petition is filed challenging the fair and decreetal order dated 06.01.2022 in I.A.No.9 of 2021 in O.S.No.115 of 2018 on the file of the Sub Court, Tirunelveli.

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2.The petitioner is the second defendant in O.S.No.115 of 2018 filed for declaration, recovery of possession and permanent injunction. In that suit, the petitioner filed I.A.No.227 of 2018 under Order XXVI Rule 9 of CPC for appointment of an Advocate Commissioner. The said petition was allowed and the Commissioner was appointed. The Commissioner has filed a report before the trial Court. The petitioner has also filed objection in I.A.No.7 of 2021 and the same was also accepted. Thereafter, on the ground that no notice was sent to the petitioner by the Advocate Commissioner before inspecting the subject property and during the relevant point of time, the petitioner was not available in India, the petitioner filed another application in I.A.No.9 of 2021 seeking to re-issue the Commissioner's warrant to measure the property once again based on the documents possessed by the petitioner. The said petition was dismissed. Challenging the same, the petitioner has filed this Civil Revision Petition.

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https://www.mhc.tn.gov.in/judis

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C.R..P.(PD)(MD).No.617 of 2022

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3.The learned counsel for the petitioner submits that initially, the petitioner filed an application to appoint an Advocate Commissioner. The said petition was allowed. However, the Advocate Commissioner, without issuing any prior notice to the petitioner, has inspected the subject property and filed a report. During such time, the petitioner was in abroad for his avocation. The Advocate Commissioner measured the property without perusing the documents possessed by the petitioner. Hence, the petitioner has filed the petition seeking re-issuance of Commissioner's warrant. The trial Court without considering all these aspects has dismissed the said petition. Further, while dismissing the application, the trial Court arrived at a conclusion that the report filed by the Advocate Commissioner is perfect. Such finding rendered by the trial Court is not proper.

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4.The learned counsel for the petitioner fairly submits that this Court may issue a direction to the trial Court to consider the objections raised by the petitioner with regard to the report filed by the Advocate Commissioner at the time of trial.

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https://www.mhc.tn.gov.in/judis

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C.R..P.(PD)(MD).No.617 of 2022

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5.Admittedly, the petitioner filed a suit for declaration and permanent injunction. In that suit, the petitioner filed an application seeking to appoint an Advocate Commissioner and the said petition was allowed. After filing of the report by the Advocate Commissioner and after filing objection to the said report, the petitioner filed another application seeking re-issuance of Commissioner's warrant. The Advocate Commissioner is appointed only to note down the physical features of the suit property with a qualified surveyor. The report of the Advocate Commissioner is itself is a piece of evidence to enable the Court to arrive at a definite conclusion and the same is not a conclusive proof either in favour of the petitioner or in favour of the respondent. If the petitioner has grievance over the report filed by the Advocate Commissioner, he can very well object the same by adducing proper evidence before the trial Court. Instead, the petitioner cannot seek reissuance of Commissioner's warrant and the same is not permissible. The issue was rightly appreciated by the trial Court and the application of the petitioner was rightly rejected.

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7.Accordingly, this Civil Revision Petition is dismissed with liberty to

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the petitioner to canvass all his defense before the trial Court against the

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https://www.mhc.tn.gov.in/judis

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C.R..P.(PD)(MD).No.617 of 2022

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report filed by the Advocate Commissioner by adducing proper evidence. No costs. Consequently, connected miscellaneous petition is closed.