M. Moideen Bava Rawther vs John Xavier Azheekal

M.M. Pareed Pillay, J.—The Respondent filed interlocutory application seeking himself to be appointed as the next friend of the Plaintiff for the conduct of the suit. The Sub Judge allowed the petition relying on a medical certificate. The order is challenged by the revision Petitioner on the ground that the Sub Judge failed to make a judicial enquiry as contemplated under Order XXXII, Rule 15 Code of Civil Procedure.

Order XXXII, Rule 15 provides that 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. Rule 15 envisages an enquiry as to whether the allegation is true or not. The Sub Judge has not conducted an enquiry into the matter. Sub Judge merely relied on the certificate issued by the doctor despite the vehement objection of the revision Petitioner that the Plaintiff does not suffer from any mental illness. The doctor who issued the certificate was also not examined.

Rule 15 contemplates enquiry by the Court on the application. Only after proper enquiry the Court can declare the Plaintiff to be of unsound mind and allow the petition. When in an application under Order XXXII, Rule 15 allegation is made that the Plaintiff is incapable of managing his affairs on account of insanity it has to be viewed with all seriousness by the Court. Such a petition cannot be treated in a cavalier manner. It deserves weighty consideration and only after proper enquiry Court can come to its conclusion. Court cannot dispense with the judicial enquiry contemplated under Order XXXII, Rule 15. In Chattanatha v. Vaikuntarama AIR 1968 Mad 345 the Madras High Court held that the Court cannot infer or assume the application to be true merely because it is not opposed by the other parties. When an application is filed before the Court under Order XXXII, Rule 15, the Court cannot shirk from its responsibility of holding an enquiry and solely depend upon the medical certificate. In Duvvuri Rami Reddi Vs. Duvvudu Papi Reddi and Others, , the Andhra Pradesh High Court held that the enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the Judge, either in open Court or chambers, and as Courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken. As there was no proper enquiry under Order XXXII, Rule 15, the order of the Sub Judge cannot be sustained.

The order in I.A. 1957 of 1987 is set aside and the case is sent back to the trial Court for denovo consideration after proper enquiry. The C.R.P. is allowed. No costs.