Mahendra Chandubhai Patel as Next Friend of Lalitaben CH vs Jayesh Balmukund Patel and 4

Honourable Ms. Justice Harsha Devani

This revision challenges the order dated 30.4.2011 passed by the learned Principal Civil Judge, Olpad below application-Exhibit-10 in Regular Civil Suit No. 66 of 2009, whereby the application made by the applicant under rule 15 of Order XXXII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), seeking appointment of the applicant as guardian and next friend of the plaintiff No. 2 - Mrs. Lalitaben Chandubhai Nathubhai has been rejected.

The applicant herein instituted a suit being Regular Civil Suit No. 66 of 2009 in the Court of the learned Principal Civil Judge (Junior Division), Olpad as the next friend of Mrs. Lalitaben Chandubhai Nathubhai (plaintiff No. 2 therein) seeking relief of declaratory nature in respect of certain properties more particularly described as agricultural land being Block No. 271 of village: Narthan, Taluka: Olpad, District: Surat. In the said suit, the applicant herein moved an application-Exhibit-10 seeking to be appointed as the guardian and next friend of the plaintiff No. 2 - Mrs. Lalitaben Chandubhai Nathubhai on the ground that the said Lalitaben (his mother) on account of old age, has become mentally and as such is incapable of protecting her interest. The applicant along with the said application, annexed a certificate dated 25.10.2010 of one Dr. Ankur Patel, M. B. B. S., D. P. M., stating that Mrs. Lalitaben Chandubhai was suffering from dementia - moderate to severe type with behavioral problem since two years and that, she has difficulty in taking care of herself and in taking decision due to loss of memory and that she has a severe memory problem.

The said application came to be opposed by the defendants contending that the said Lalitaben Chandubhai is putting her in other court matters and is contesting litigations on her own and disputed the fact that she had become mentally infirm and was incapable of taking care of her interest.

By the impugned order, the trial court has rejected the said application on the ground that Dr. Ankur Patel is not a psychiatrist, nor does he possess any specialization in psychology or mental illness. That the plaintiff No. 2 is 69 years of age and therefore, it is normal that there may be some loss of memory. The trial court was of the opinion that on the basis of the certificate given by the said doctor, it was not possible to state that the plaintiff was of unsound mind or was not in a position to take care of her interest. The trial court was further of the view that the husband of the plaintiff No. 2 was alive and that the husband and other children of Lalitaben have not submitted any affidavits supporting the fact that Lalitaben is of unsound mind and that it is not the case of the applicant that Lalitaben''s husband is not in a position to look after her interest. The trial court, accordingly, rejected the said application.

Mr. Masoom Shah, learned advocate for the applicant invited attention to the provisions of rule 15 of Order XXXII of the Code, to submit that the provisions of rules 1 to 14 of Order XXXII would apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to such persons who, though not so adjudged, are found by the Court on inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued. Reliance was placed upon the decision of the Supreme Court in the case of Kasturi Bai and Others Vs. Anguri Chaudhary, , wherein the Supreme Court had held that on a bare perusal of Order XXXII rule 15, it is evident that the Court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by the court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. The Supreme Court, in the facts of the said case, held that the High Court ought to have directed the learned trial judge to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent therein was incapable of protecting her interest by reason of any mental infirmity or not. Since no such inquiry was held, the Supreme Court held that the High Court had committed a jurisdictional error in appointing a guardian without making an inquiry as required in terms of Order XXXII rule 15 of the Code.

Reliance was also placed upon the decision of the Andhra Pradesh High Court in the case of Duvvuri Rami Reddi Vs. Duvvudu Papi Reddi and Others, , for the proposition that Order XXXII rule 15 of the Code applies not only to a person adjudged to be of unsound mind, but also to a person of weak mind. Where in a suit filed by the plaintiff through his next friend an application is made by the next friend that the plaintiff is of unsound mind, or mentally infirm for the purpose of the rule, the extent of the infirmity has to be found by the court on inquiry. This inquiry should consist of the examination of the alleged lunatic by the Judge, either in open court or chambers, and as courts are generally presided over by the lay-men, as a matter of precaution, the evidence of medical expert should be taken. Reliance was also placed upon a decision of the Patna High Court in the case of Smt. Godawari Devi Vs. Smt. Radha Pyari Devi and Others, .

Though served, there is no appearance on behalf of the respondents.

From the facts and contentions noted hereinabove, it is apparent that the suit came to be instituted by the applicant as the next friend of Mrs. Lalitaben Chandubhai Nathubhai. In the said suit, the applicant moved an application at Exhibit-10 under rule 15 of Order XXXII of the Code for being appointed as guardian and next friend of Mrs. Lalitaben Chandubhai on the ground that she was mentally infirm on account of age and was not in a position to take care of her interest. The trial court, by the impugned order, has rejected the said application mainly on the ground that the doctor who had given the certificate that the plaintiff No. 2 was suffering from dementia and memory problem, was not a psychiatrist, nor was he holding any qualifications in psychology or mental illness.

As noticed hereinabove, the Supreme Court in the case of Kasturibai and others v. Anguri Chaudhary, (supra), has laid down that under the provisions of rule 15 of Order XXXII of the Code, the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. Even if a person is not so adjudged but is found by the court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. In the facts of the present case, the applicant has come before the trial court contending that the plaintiff No. 2, by reason of mental infirmity, is incapable of protecting her interest. In support of his case the applicant has produced a certificate issued by one Dr. Ankur Patel. If the trial court was of the opinion that it was not possible to accept the say of the applicant that Mrs. Lalitaben is mentally infirm as contended by him on the basis of the said certificate, the trial court ought to have made an inquiry as contemplated under rule 15 of Order XXXII of the Code to ascertain as to whether the plaintiff No. 2 was incapable of protecting her interest by reason of any mental infirmity or not. Without making any inquiry as regards the mental condition of Lalitaben, the trial court ought not to have rejected the application merely on the ground that Dr. Ankur Patel who had issued the certificate was not qualified to issue such a certificate. The impugned order passed by the trial court, therefore, cannot be sustained.

For the foregoing reasons the application succeeds and is, accordingly, allowed. The impugned order dated 30.4.2011 passed by the learned Principal Civil Judge, Olpad below the application-Exhibit-10 in Regular Civil Suit No. 66 of 2009, is hereby quashed and set aside. The matter is directed to be remitted to the trial court for consideration of the matter afresh strictly in terms of rule 15 of Order XXXII of the Code as also in the light of the observations made hereinabove. Rule is made absolute accordingly with no order as to costs.