Appointment of Advocate Commissioner Is Essential Where Mandatory Injunction Is Sought: Madras High Court

“In a suit for mandatory injunction, the offending construction must be properly measured and earmarked – else, execution would be impossible” , In a noteworthy pronouncement concerning civil procedural law and the scope of interlocutory orders, the Madras High Court upheld the appointment of an Advocate Commissioner in a suit that transitioned from one seeking bare injunction to one seeking mandatory injunction, ruling that “change in circumstances justifies reconsideration of earlier orders and does not attract the bar of res judicata.”

Justice S. Sounthar dismissed the Civil Revision Petition filed under Article 227 of the Constitution, affirming that appointment of an Advocate Commissioner is a vital procedural tool when it comes to disputes involving encroachment and removal of structures.

Commissioner’s Report Vital For Identifying Encroachments In Mandatory Injunction Suits

The civil suit in question, originally filed as a bare injunction suit, was later amended by the plaintiffs (respondents herein) to include a mandatory injunction seeking removal of constructions allegedly put up by the defendants on the second item of the suit property.

The Trial Court allowed the application filed by the respondents under Order XXVI Rule 9 CPC, appointing an Advocate Commissioner with the assistance of a Surveyor to measure the suit property and file a report. The defendants (petitioners) challenged the said order on the ground that such a move was previously disallowed and that appointment of a Commissioner was unnecessary in a bare injunction suit.

However, the High Court squarely rejected that contention, drawing a distinction between the nature of reliefs:

"In a suit for mandatory injunction, the offending construction shall be properly measured and earmarked. Otherwise, at the time of execution, there will be difficulty,” observed Justice S. Sounthar, holding that the relief of removal of construction requires clear identification of the disputed portion and thus necessitates a Commissioner’s report.

Earlier Rejection of Commissioner Application No Bar – Res Judicata Not Attracted

The defendants contended that a prior application for appointment of Advocate Commissioner had already been rejected by the Trial Court, and upheld by the High Court, and thus a fresh application should not have been entertained.

Rejecting this argument, the High Court clarified that the earlier dismissal was based on the fact that the suit, at that stage, was limited to a bare injunction. With the amendment of the plaint introducing a mandatory injunction, the factual matrix had materially changed:

"The dismissal of the earlier application when the suit prayer was bare injunction will not bar the respondents from seeking appointment of Advocate Commissioner based on change of circumstances," the Court clarified, effectively ruling that doctrine of res judicata was inapplicable in such scenarios.

Thus, a fresh application following an amendment of pleadings was held to be perfectly maintainable.

Measurement Must Be Based on Title Deeds and Revenue Records

The Court also issued clear directions regarding the scope of the Commissioner’s duties, emphasizing that the measurement must be objective, comprehensive, and based on verifiable records:

"The Advocate Commissioner shall measure the suit property with the help of Surveyor with reference to the title documents of both the parties and the revenue records," Justice Sounthar directed.

Such a procedure, the Court observed, would assist the Trial Court in effectively adjudicating the controversy, particularly in identifying and quantifying the extent of the alleged encroachment.

Limited Interference Under Article 227 – Interlocutory Orders Must Stand If Not Perverse

Upholding the Trial Court’s discretion, the High Court reiterated the limited scope of interference under Article 227 of the Constitution. Emphasizing that the order under challenge was neither perverse nor illegal, the Court found no grounds to invoke supervisory jurisdiction:

"I do not find anything to interfere with the impugned order passed by the learned District Munsif…"

Accordingly, the Civil Revision Petition was dismissed, and the connected miscellaneous petition was closed, with no order as to costs.

This judgment is a strong reaffirmation of procedural flexibility in civil litigation. It underlines that interlocutory orders must respond to the evolving nature of a suit, especially where physical verification is crucial to granting or executing relief. It also sends a clear message that doctrine of res judicata does not rigidly apply to procedural rulings when the underlying pleadings and prayers undergo material change.

For litigators, this judgment offers strategic clarity: when seeking or opposing appointment of a Commissioner, the relief claimed in the suit—and any amendments to it—must be squarely examined.

Date of Decision: 23.01.2026