Harjinder Singh vs Nachhattar Kaur

J.V. Gupta, C.J.

This revision petition is directed against the order of the trial Court dated March 2, 1990, whereby the application for amendment of the plaint was allowed and Court guardian was appointed for Atma Singh, defendant on the basis that he was of unsound mind.

The learned counsel for the defendantpetitioner submitted that the trial Court without holding an enquiry as contemplated under Order XXXII rule 15, Code of Civil Procedure, has ordered the appointment of the Court guardian which was illegal and thus the Court had acted illegally and with material irregularity in the exercise of its jurisdiction.

After hearing the learned counsel, I find merit in this contention.

Order XXXII rule 15 of the aforesaid Code provides as follows :

Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind. Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."

4A. According to the above rule, the Court is to find on enquiry the person to be incapable by reason of any mental infirmity of protecting his interest when suing or being sued. Admittedly no such enquiry has been held by the trial Court before passing the impugned order.

Consequently, this revision petition succeeds. The impugned order is set aside and the trial Court is directed to decide the matter afresh after holding the enquiry as contemplated under Order XXXII rule 15 of the aforementioned Code and then to pass the appropriate order in accordance with law.

Revision allowed.