P.N.S. Sindha Madhar vs S. Akkani Beevi and Others

S. Rajeswaran, J.—The plaintiff in O.S. No. 262 of 2006 on the file of the First Additional Sub Judge, Madurai is the revision petitioner.

The petitioner/plaintiff filed O.S. No. 262 of 2006 against the respondents herein for declaration, mandatory injunction, prohibitory injunction and other reliefs in connection with the ''A'' and ''B'' schedule properties as mentioned in the plaint. The petitioner/ plaintiff filed I.A. No. 576 of 2006 under Order 32 Rule 3, 15 and u/s 115 of C.P.C., to appoint a suitable person as next friend to the insane first defendant/first respondent herein to proceed and conduct the suit on behalf of her.

It is stated by the petitioner/plaintiff in the affidavit filed in support of the application in I.A. No. 576 of 2006 that the first defendant in the suit is an insane person for the past 40 years and the defendants 10 and 11 (Respondents 10 and 11 herein), who are the sons of the first defendant, created some document by taking advantage of the lunacy of their mother. Hence the situation warrants a person, other than the defendant 10 and 11, is to be appointed as a next friend of the first defendant.

The first defendant herself filed a counter affidavit in I.A. No. 576 of 2006 by stating that she is not an insane person. She further stated that the plaintiff is her younger brother and in order to grab her properties, the plaintiff is alleging her as insane, knowing fully well that she is a sane person. After filing a counter affidavit in I.A. No. 576 of 2006 sworn on 24.07.2006, the first defendant has also filed a written statement in the suit, which was verified by her on 20.08.2006.

By order dated 06.11.2006, the trial Court dismissed I.A. No. 576 of 2006 and aggrieved by the order, the above C.R.P. has been filed under Article 227 of the Constitution of India.

Heard the learned Counsel for the petitioner and the learned Counsel for the respondent No. 1,10 and 11 and the learned Government Advocate for the 12th respondent. I have also gone through the documents and the judgments filed and referred to by them in support of their submissions.

The learned Counsel for the revision petitioner submitted that the Court below ought to have examined the mental status of first respondent with the assistant of a Doctor before deciding the application. As there was no enquiry conducted by the Court below to ascertain the mental status of the first respondent, the order is to be set aside. He relied on the decision of the Supreme Court reported in 2003(2) CTC 276 (Kasturi Bai and Ors. v. Anguri Chaudhary) and the decision of this Court reported in 2006(4) CTC 657 (C.S. Navamani v. C.K. Sivasubramanian).

Per Contra, the learned Counsel for the first respondent and the respondent 10 and 11 submitted that the petitioner has no locus-standi to maintain the application under Order 32 Rule 3 and 15 of C.P.C and even otherwise, an enquiry was conducted by the trial Court by personally examining the first respondent in the open court. He relied on the decision of Patna High Court reported in Smt. Godawari Devi Vs. Smt. Radha Pyari Devi and Others, .

I have considered the rival submissions carefully with regard to the facts and citations.

The stand of the revision petitioner, who is the younger brother of the first respondent, before the trial Court is that his elder sister is an insane person for the past 40 years. It is also an admitted fact that first respondent has not been adjudged as an insane person in any previous proceedings.

Order 32 of C.P.C deals with suits by or against minors and persons of unsound mind. Rule 15 of Order 32 is very relevant for the purpose of this case as this Rule stipulates 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. Thus, Rule 15 of Order 32 deals with two types of persons namely (1) persons already adjudged as persons of unsound mind and (2) persons who are not adjudged as persons of unsound mind. In so far as the first category of persons concerned, there are no difficulties in applying the provision of Order 32 of C.P.C. In so far as second category of persons concerned, the provisions of Order 32 will become applicable only when the Court finds them on enquiry to be incapable of protecting their interest by reason of any mental infirmity.

In the present case, the revision petitioner filed I.A. No. 576 of 2006 to appoint a next friend to defendant/first respondent as she is an insane person for the past 40 years. But the first respondent herself filed a counter affidavit denying the same. She has clearly mentioned in the counter affidavit that she had already appeared before the trial Court once, ie., on 18.07.2006 and her sworn statement was recorded by the Court. Only after satisfying that she is a normal person, her vakalat was recorded by the Court on 18.07.2006. She has also referred to the earlier Court proceedings which was filed by her in L.A.O.P.175 of 1984, O.S. No. 1504 of 1986, O.S. No. 125 of 1989 and A.S. No. 75 of 1997. Infact, O.S. No. 125 of 1989 and A.S. No. 75 of 1997 were jointly contested by the revision petitioner and the first respondent herein and the revision petitioner himself filed an affidavit in A.S. No. 75 of 1997 on behalf of the first respondent also. It was not raised at that time that first respondent is an insane person, even though the stand of the revision petitioner is that she is an insane person for the past 40 years. Before the trial Court, eight documents were filed by the petitioner and 20 documents were filed on behalf of the first respondent and the trial Court after carefully evaluating the same to the conclusion that first respondent is not proved to be an insane person for the past 40 years and dismissed the application.

The main contention of the revision petitioner is that no enquiry was conducted by the trial Court by examining the mental status of first respondent by a competent doctor before deciding the application.

In 2003(2) CTC 276)cited supra), the Supreme Court held as follows:

Para 9. Shri Jain, therefore, has rightly submitted that the order of the learned Single Judge must be held to have merged with the order of the Division Bench.

Order 32, Rule 15, C.P.C. Reads thus:

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.

Para 10. On a bare perusal of the said provision, 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 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 respondent did not contend that appellant No. 1, herein is of unsound mind. As noticed herein before, the respondent herself had filed an application before the trial Court for holding an inquiry to the effect that she suffers from mental infirmity.

Para 11. The learned trial Court refused to do the same and in that view of the matter the High Court, in our opinion, while setting aside the said order could only issue a direction directing the learned trial Judge to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent herein was incapable of protecting her interest by reason of any mental infirmity or not. As no such inquiry was held, there cannot be any doubt whatsoever that the learned Single Judge committed a jurisdiction error in passing the impugned judgement which, the Division Bench as noticed hereinbefore upheld.

In 2006(4) CTC 657 (cited supra) this Court held as under:

Para.24. The enquiry contemplated under Order 32, Rule 15, is mandatory, to ascertain the mental state of mind of a person, before he is adjudged as unsound or mentally infirm, The word "enquiry" used in the provision means, "to make an examination", to adjudge a person judicially as a lunatic or mentally infirm. "Adjudge" means, "to decide or to determine judicially", which means that there must be adequate materials to come to such conclusion, that a person has to be represented by a guardian.

Para.25. When there is an allegation of unsound mind or mental infirmity, it is the duty of the Court to examine the individual and if necessary, seek the assistance of an expert to adjudge as to whether the individual is having a sound mind and capable of managing the affairs. As a precaution, the evidence of expert in the Medical profession will be useful in understanding the meaning and the symptoms of any disease dealing with mental deterioration.

Para 26. In the present case, such a course has not been followed and therefore, there is no doubt that the Court below has failed to adjudge the respondent as mentally infirm, necessitating the appointment of a guardian. Equally while removing the Court guardian the lower Court has simply observed that the respondent had appeared before the Court and shown his mental faculties and is capable of defending himself. Not even questions were posed to the respondent to ascertain as to whether he can understand and answer the same. Mental faculty is a broad term and it is beyond comprehension as to how the Court below can come to any conclusion by mere observation, particularly when the respondent had suffered from loss of memory, etc.

Relying on the above two decisions, the learned Counsel for the revision petitioner contended that first respondent should be subjected to medical examination to adjudge as to whether she is having a sound mind. In AIR 1985 PATNA 366 (cited supra) a Division Bench of the Patna High Court held that the issue of the mental stability of a person who has not been adjudged as insane in an earlier proceedings is a matter entirely between the Court and the party alone and nobody else has any vested interest or right to agitate the unsoundness of mind of his opponent. The relevant portion of the judgment reads as under:

Para 6. It is common ground that herein we are not dealing with the category of persons adjudged to be of unsound mind. That different considerations would be attracted in their case is patent and, therefore, this category may, for all purposes, be left altogether apart. Adverting now to the second category, it seems plain that the issue of unsoundness of mind of the parties in this class is primarily betwixt the Court and the party and is certainly not a lis betwixt the parties themselves. The legislature in its wisdom has conferred a larger and paternal power on the Court to see that each party has the capacity to safeguard its legal interest and is no way handicapped by reason of any mental infirmity. It is equally significant to notice that this broad-based power extends in cases of any mental infirmity and is not necessarily governed by the extreme situation of a person being of unsound mind altogether. To my mind, this beneficial and, indeed, paternal power is wholly vested in the Court and it is in its discretion alone, where it finds that any one of the parties is suffering from a weakness of mind, to proceed for taking steps to safeguard the interest of such a party. To use the language of another jurisdiction, namely, that of contempt, the list herein is betwixt the Court and such a party and not betwixt the opposite parties as such. As has been said in that jurisdiction, the issue of contempt is primarily between the Court and the contemner, and even more so under. O 32 R.15 in its second category, it is a matter entirely between the Court and the party alone and nobody else has any vested interest or right to agitate the unsoundness of mind of his opponent in this class. To put it tersely, it is not an issue betwixt the parties and neither the plaintiff nor the defendant has the locus standi to challenge or question the soundness of mind of the opposite side and claim an adjudication thereon at the very threshold. If this were to be so permitted in this field, there would, perhaps, be no end to allegations and counter allegations in this regard and its misuse would be capable of working grave public mischief.

Relying on the above decision, the learned Counsel for the first respondent submitted that as the Court was satisfied that the first respondent is sane person, it is not for the revision petitioner to challenge the same.

In the decision reported in 2003 (2) CTC 276 (cited supra)the person herself filed an application before the trial Court for holding an enquiry to the effect that she suffers from mental infirmity. In the other decision reported in 2006(4) CTC 657 (cited supra), an application has been filed under Order 32 Rule 4 and 15 to appoint a guardian to the respondent as he is an insane person and the trial Court proceeded exparte and without examining the respondent appointed a Court guardian. Thereafter, the respondent filed an application to set aside the order of appointment of guardian as he has recovered from his mental illness and the trial Court removed the guardian. Only in the above said of facts, decisions were given by the Supreme Court as well as our High Court and the facts in these decisions are easily distinguishable.

In the present case, it was asserted by the revision petitioner that the 1st respondent has been an insane person for the past 40 years. But the revision petitioner himself along with the first defendant defended Court proceedings together from 1989 to 1997 in O.S. No. 125 of 1989 and A.S. No. 75 of 1997. Infact, when the lands of the petitioner and the first respondent were acquired by the Government, both of them appeared before the Special Tahsildar for enquiry proceedings. In such circumstances, there is no bonafide on the part of the revision petitioner in contending that first respondent has been an insane person for the past 40 years. Moreover, even before recording the vakalat filed by the counsel on behalf of the first respondent, the first respondent appeared before the trial Court on 17.10.2006 and her mental stability was gone into at that time by the Court and only after getting satisfy that the first respondent is not an insane person, the trial Court permitted the counsel to appear on behalf of the first respondent. Therefore, it cannot be said that there was no enquiry at all by the Court to ascertain the mental condition of the first respondent. Further subjecting a person, to medical examination is not compulsory in all the cases and only if necessary a person could be subjected to medical examination.

I am satisfied that there are adequate materials to prove that the claim of the revision petitioner is not bonafide and there is no illegality in the order of the trial Court warranting interference under Article 227 of the Constitution of India.

In the result, there are no merits in the above Civil Revision Petition and the same is dismissed. No Costs. Consequently, connected M.P. is also closed.