ORDER

CHANDRA DHARI SINGH, J (Oral)

1. The captioned civil revision petitions filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) have been filed on C.R.P. 353/2023 & 1 connected matter Page 1 of 18 Signature Not Verified Digitally Signed behalf of petitioner seeking setting aside of the impugned orders dated 1st September, 2023 arising out of civil suits bearing Civ DJ no. 9241/2016 (CRP no. 353/2023) and Civ DJ no. 10334/2016 (CRP no. 355/2023).

2. The Civil Suit bearing Civ DJ no. 9241/2016 was filed by Sh. Om Prakash Kapoor along with others against Sh. Shubhash Kapoor (petitioner herein) and the Civil Suit bearing Civ DJ no. 10334/2016 was filed by Sh. Shubhash Kapoor against Sh. Suraj Prakash Kapoor and others. Both the suits were filed seeking partition, possession, and mesne profits.

3. In both of the aforesaid civil suits, applications under Order XXXII Rule 15 of the CPC were filed on behalf of Sh. Om Prakash Kapoor for appointment of next friend on his behalf. The learned Trial Court allowed the aforementioned applications and appointed one Sh. Rajnish Kapoor as the next friend of Sh. Om Prakash Kapoor for the purpose of suit proceedings vide impugned order dated 1st September, 2019.

4. Being aggrieved by the above said impugned order, the petitioner has filed the captioned civil revision petitions, seeking setting aside of the same. 5. Since the facts as well as the legal issues are common to both the revision petitions, the facts and submissions have been culled out from C.R.P no. 353/2023 for the purposes of adjudication.

6. Mr. Arvind K. Nigam, learned senior counsel appearing on behalf of the petitioner submitted that the impugned order is bad in law and liable to be set aside since the same has been passed without taking into consideration the entire facts of the case as well as the settled position of law.

C.R.P. 353/2023 & 1 connected matter Page 2 of 18 Signature Not Verified Digitally Signed

7. It is submitted that the learned Trial Court erred in passing the impugned order as it did not permit the petitioner to file reply to the application filed under Order XXXII Rule 15 of the CPC.

8. It is submitted that although the petitioner was given the right to be heard by way of filing written submissions, the contentions advanced as well as the judgment relied upon by the learned counsel for the petitioner were not considered while passing the impugned order.

9. It is further submitted that the impugned order does not advert to any submission made by the learned counsel on behalf of the petitioner before the learned Trial Court. It is submitted that the learned counsel on behalf of the petitioner had cited various judgments regarding the procedure to be followed for appointment of a guardian, however, the learned Trial Court failed to appreciate the same.

10. It is submitted that the learned Trial court passed the impugned order in a mechanical manner, without properly conducting judicial enquiry, relied upon the ex-parte opinion of the doctor, without recording his testimony or giving an opportunity to the other side/petitioner to cross-examine the doctor.

11. It is submitted that the learned Trial Court failed to undertake an enquiry and call for the opinion of an independent doctor, but rather, relied on the opinion of the consultant doctor of the respondent no. 1.

12. It is further submitted that the examination of respondent no. 1, which was conducted by the learned Trial Court via video conferencing, was C.R.P. 353/2023 & 1 connected matter Page 3 of 18 Signature Not Verified Digitally Signed unsatisfactory and should have been conducted physically before the Court. It is submitted that while the respondent no. 1 began to answer the first question in part, he suddenly stopped and did not answer the remaining questions posed to him, and the same is contrary to the established procedure of conducting a judicial enquiry under Order XXXII Rule 15 of the CPC.

13. It is submitted that the exercis