Case Note & Summary
The petitioner, N. Nithyanandan, filed a Civil Revision Petition under Article 227 of the Constitution of India challenging the order dated January 20, 2022 passed by the V Additional District Judge, Coimbatore in I.A. No.2 of 2019 in O.S. No.816 of 2019. The petitioner was the plaintiff in the original suit seeking partition and division of ancestral and joint family properties, claiming a 1/3 share. The defendants were his father (1st defendant) and brother (2nd defendant), along with two banks (3rd and 4th defendants). During the pendency of the suit, the plaintiff filed an application under Order XXVI Rule 9 and Section 151 of the Code of Civil Procedure, 1908, seeking appointment of an Advocate Commissioner to inspect the suit properties, note down physical features, and file a report. The plaintiff alleged that in the first week of July 2019, he came to know that the 2nd defendant had attempted to construct on a portion of the suit property by digging pits for pillars, and that the 1st defendant had executed a settlement deed dated March 6, 2019 in favor of the 2nd defendant. The Trial Court dismissed the application without considering the merits and without recording reasons. The High Court found that the Trial Court had failed to apply its mind and record reasons, which was a jurisdictional error. The High Court set aside the impugned order and remanded the matter back to the Trial Court for fresh consideration on merits, directing the Trial Court to pass a reasoned order after hearing both sides. The Civil Revision Petition was allowed, and the connected miscellaneous petition was closed.
Headnote
A) Civil Procedure - Appointment of Advocate Commissioner - Order XXVI Rule 9 read with Section 151 Code of Civil Procedure, 1908 - The Trial Court dismissed the application for appointment of an Advocate Commissioner without considering the merits and without recording reasons - The High Court held that the Trial Court must apply its mind and record reasons before dismissing such an application - The impugned order was set aside and the matter was remanded back to the Trial Court for fresh consideration on merits (Paras 6-8).
Issue of Consideration
Whether the Trial Court was justified in dismissing the application for appointment of an Advocate Commissioner under Order XXVI Rule 9 CPC without considering the merits of the case and without recording reasons.
Final Decision
The Civil Revision Petition is allowed. The impugned order dated January 20, 2022 passed in I.A. No.2 of 2019 in O.S. No.816 of 2019 by the V Additional District Judge, Coimbatore is set aside. The matter is remanded back to the Trial Court for fresh consideration on merits. The Trial Court is directed to pass a reasoned order after hearing both sides. The connected miscellaneous petition is closed.
Law Points
- Order XXVI Rule 9 CPC
- Section 151 CPC
- Article 227 Constitution of India
- Appointment of Advocate Commissioner
- Partition Suit
- Ancestral Property
- Joint Family Property
- Local Inspection
- Physical Features
- Recording of Reasons
- Application of Mind
