Kunhamma vs Rosakkutty

K.A. Mohammed Shafi, J.—O.S. No. 45/95 was filed before the Munsif''s Court, Nandapuram by the revision Petitioner, as the next friend of one Pulikkal Thomas, to whom the plaint schedule property belongs, for a permanent prohibitory injunction restraining the Defendant from alienating the plaint scheme property and cutting and removing valuable trees from the property. It is alleged that Sri Pulikkal Thomas is deaf and dumb and incapable of looking after his affairs. During the pendency of the suit I.A. No. 583/96 was filed by Thomas aforesaid for removal of the next friend. The lower Court, after conducting enquiry by order dated 26.6.1996 allowed the petition and removed the next friend. That order is challenged by the next friend in this revision petition.

The revision Petitioner has contended that Pulikkal Thomas is deaf and dumb and mentally retarded person incapable of looking after his affairs. A Medical certificate issued by doctor Ali who was treating him, to that effect was produced before the lower Court at the time of filing the suit, by the Petitioner as his next friend. According to him, the lower Court without conducting a proper enquiry as provided under Order 32, Rule 15 CPC held that Sri. Thomas is only deaf and dumb and is capable of looking after his affairs. The Respondent vehemently contended that the lower Court has conducted a proper enquiry as provided under Order 32, Rule 15 CPC and satisfied that Sri Thomas was capable of looking after his affairs, by questioning him in open Court and that fact is evident from the impugned order itself. In the impugned order, it is stated that the enquiry was conducted in open Court and to all questions put by the Court Sri Thomas had given proper, correct and intelligent answers through gestures and signs and the lower Court allowed the petition finding that Thomas is only a deaf and dumb person and not an individual incapable of looking after his affairs.

Order 32, Rule 15 CPC reads as follows:

Rule 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 person 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.

The scope of enquiry contemplated under Order 32, Rule 15 CPC is satisfaction of the Court as to whether the person is incapable of looking after his affairs due to mental infirmity or not.

It is well settled that when a plaint is presented before the Court by next friend, before entertaining the same the Court has to prima facie satisfy that the Plaintiff, due to mental infirmity, is incapable of protecting his interest. If it is contended in the suit by the opposite party that the Plaintiff is not a person suffering from any mental infirmity and is not incapable of looking after his own affairs, the Court has to conduct an enquiry in that regard and has even to frame an issue regarding that aspect. In this case, from the impugned order, it is not clear as to whether any such enquiry was conducted by the Court and framed any issue in that behalf. The Court conducted an enquiry in the above petition filed by Sri Thomas, to remove his next friend and found he is capable of looking after his affairs.

As already noted the scope of enquiry by the Court is only for the satisfaction of the Court as to whether the alleged idiot or mentally retarded person is capable of looking after his affairs. Hence, the question to be considered in this case is whether the enquiry conducted by the Court below is proper and sufficient as contemplated under Order 32, Rule 15 Code of Civil Procedure. It would appear from the impugned order that the lower Court put several questions to the alleged idiot or mentally retarded person in open Court and he answered all those questions properly by gestures and signs being a deaf and dumb person.

It is stated in the impugned order that the Court made enquiry in the open Court as to whether the Petitioner in the IA is ah idiot or suffering from any mental infirmity and the various questions put by the Court and answered by him are mentioned in the order. It is also stated in the order that the Petitioner Sri Thomas has given answers by showing signs and gestures as he is deaf and dumb and from the general appearance and the answers given by him to the questions put by the Court, the Court came to the positive conclusion that he is not an idiot and is quite capable of looking after his affairs and that he is only a deaf and dumb person. It is nowhere stated in the order passed by the learned Munsiff that he had knowledge or training on understanding the signs and gestures made by the deaf and dumb person. It is also not stated in the order as to whether the lower Court had the help of any expert regarding interpretation of the gestures and signs made by deaf and dumb persons. It has to be noted that without proper experience or expertise in understanding the gestures and signs given by a deaf and dumb person or without the assistance of an expert in that field, it will be very difficult though not absolutely impossible, to descent and understand the sighs and gestures made by a deaf and dumb person, being answers to the questions put to him by the Court. Therefore, it is absolutely unsafe for the Court to rely upon the gestures and signs given by the deaf and dumb person with regard to the correctness and accurate understanding of the answers given by him.

In this case, when the revision Petitioner filed the above suit, as the next friend of Sri Thomas alleging that he is mentally impaired person, a certificate issued by Dr. Ali, who is alleged to have been treating Sri Thomas for mental infirmity, was produced and the learned Munsiff who is a layman in that field, without obtaining the assistance of a competent doctor, came to the conclusion on the basis of the mere questions put to Sri Thomas that he is not mentally impaired.

Even though the Court is not bound to make an elaborate and detailed enquiry with regard to the sanity or otherwise of a person who is alleged to be incapable of looking after his own affairs and under Order 32, Rule 15 CPC the scope and ambit of the enquiry is the satisfaction of the Court as to whether that person is in fact incapable of looking after his affairs, the enquiry should be a judicial enquiry to enable the Court to come to a satisfactory conclusion as to the mental condition of the party concerned.

From the facts and circumstances of the case and the nature of enquiry conducted by the lower Court in this case, it is clear that the enquiry conducted in this case is not a satisfactory judicial enquiry regarding the mental condition of the person in order to arrive at a satisfactory conclusion regarding his mental condition, especially considering the fact that no services of an expert doctor is utilised inspite of the fact that a certificate issued by the doctor stating that Sri Thomas was mentally impaired, was produced and in the affidavit filed in support of the above petition to remove his next friend it is averred that a Court guardian may be appointed in the place of the revision Petitioner and also the fact that Sri Thomas was a deaf and dumb person and the Court was not assisted by an expert to interpret the gestures and signs made by him in answer to the questions put by the Court. Under the circumstances the finding arrived at by the lower Court that Sri Thomas was not mentally unpaired and he is able and competent to look after his affairs though he is deaf and dumb, is not sustainable.

The counsel for the Respondent submitted that after the impugned order passed by the lower Court, the above suit itself has been disposed of by the lower Court and therefore the above revision petition has become infructuous.

It is clear that the impugned order is a dependent order and once the impugned order is set aside, all further proceedings taken and exercise made by the Court in the meanwhile including the final disposal of the suit will be rendered nugatory and null and void. In the decision in G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, , the Supreme Court observed as follows:

The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called ''dependent-orders'' and if the order executing the delays is itself set aside in the Supreme Court appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory.

Therefore, it is clear that the disposal of the suit by the lower Court after passing the impugned order is nugatory and null and void.

Hence, this revision petition is allowed, the impugned order is set aside and the lower Court is directed to conduct a proper judicial enquiry as to whether Sri Thomas is mentally impaired and incapable of looking after his affairs, and pass appropriate orders in accordance with law after obtaining assistance of the necessary experts in the matter.