Pradeep Kr. Roy vs Susmita Roy Chakraborty

Abani Mohan Sinha, J.—This Revision application is directed against the judgment, and order passed by the Additional District Judge, Fourth Court, Alipore, in Mat. Suit No. 14 of 1989 dealing with an application under Order 32 Rule 15 of the CPC at the instance of the Revision-first-Petitioner who as husband of the opposite party brought the Mat. Suit on various grounds and prayed for appointment of a next friend to represent the opposite party wife as Defendant in the said suit. The grounds in the Mat. Suit, inter alia, are that the opposite party wife suicide-from mental imbalance and psychopathic disorder disabling her to live with the Plaintiff husband as husband and wife. It was also alleged that the marriage was not consummated due to physical and mental incapacity of the opposite party wife. The Petitioner husband prayed for a decree of divorce on that view.

He filed the plaint in the Mat. Suit making the opposite party Respondent wife as a party represented by her next friend, father. Later, during the pendency of the proceeding he filed an application under Order 32 Rule 15 for appointment of a next friend to represent the Respondent wife, the opposite party in the present Revision in Mat. Suit.

It was contended by the Respondent wife who filed a written objection that, the allegation of her insanity or mental imbalance was totally false and that she is mentally alert and physically fit to defend herself in the Mat. Suit. According to her, the petition was filed with a motive to avoid payment of alimony pendente lite @ Rs. 500 per month as ordered by the Court. The learned Addl, Dist. Judge found that the formalities of Order 32 Rule 15 of the CPC were not observed by the Plaintiff husband and that the facts of insanity or mental imbalance or incapacity to defend herself in the suit was denied by the Respondent wife who swore an affidavit to this effect. The learned Addl. District Judge further found that the affidavit was not controverted by any affidavit-in-opposition or affidavit-in-reply and, as such, he faulted the application under Order 32 Rule 15 of the CPC filed by the Plaintiff husband. On these grounds he rejected the application. Being aggrieved by such judgment and order, the Plaintiff husband has come up in Revision.

We have heard the learned Advocates representing the respective parties and we have also been taken to. the copies of petitions and written objections. It is not disputed that the provisions relating to representation of minors in suit or proceeding before a civil Court would apply mutatis mutandis in the case of representation of persons adjudged to be of unsound mind. For the sake of clarity the rule is quoted below:

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 capable, by reason of any mental infirmity of protecting their interests when suing or being sued.

It is to be noted that the Court may direct an enquiry in order to ascertain if by reason of any mental infirmity any person is incapable of protecting his or her interest, when suing or being sued. The words "before or during the pendency of the suit" in the rule indicates that such enquiry can be made by the Court at any stage of the proceeding. At the time of admitting of a plaint it is the duty of the Court to examine the particulars which were required to be given in the plaint. One of such particulars relates to the evidence of the Plaintiff to defend the suit or in other words if the Plaintiff or Defendant is a minor or a person of unsound mind and that a statement to the effect should be given in the plaint [vide. Order 7 Rule 1(d)]. In the present case the Court admitted the plaint without such examination as the plaint was filed showing the Respondent wife to be represented by his father as next friend. If the trial Judge found the absence of such particulars he should have asked the Plaintiff to supply such particulars in terms of Order 7 Rule 1. He remained idle without taking any action according to procedure provided in the Court. Before admitting the plaint he may insist on a prima facie proof of unsound mind and may also direct an enquiry in that regard and may record a finding of infirmity so as to permit the next friend to represent a party in the suit or. proceeding. The enquiry is to be done by the Court itself and should not be guided by any extraneous consideration such as statements made in affidavit or counter-affidavit as had been done by the learned, trial Judge in the present case. The doctrine of non-traverse is a rule of pleadings. It cannot be a determining factor for the purpose of conducting an enquiry and arriving at a finding as to the infirmity of any person which disables him to prosecute a suit or to defend himself in a suit either as Plaintiff or as a Defendant.

It has been strenuously urged that the fact of mental infirmity or incapability of the Respondent-wife is very much in issue and in dispute in the Mat. Suit and that such issue should not be decided at the initial stage and it would amount to prejudging of the disputed issue at the threshold of trial. In our view, the learned trial Judge could not avoid an enquiry on this ground alone. For it is always permissible under the law to conduct such enquiry and it is also permissible for a party to show that the allegations of mental infirmity or unsoundness of mind are not true or justified. In the absence of representation of mentally infirm or incapacitated person, the order or decree passed in such suit is a nullity and the Court cannot allow such suit or proceeding to continue without proper representation according to the provision of Order 32. Accordingly, we set aside the order of the learned trial Judge and send back the case to him for proper enquiry in terms of Order 32. Rule 15 of the CPC after allowing the parties to adduce evidence in support of their respective contentions. The learned trial Judge may take tire assistance of such evidence and also the assistance of any medical expert, if he requires in the circumstances of the case. It is made clear that we have not made any observations as to the merits of the case of the parties, and our observations made in this order will not stand in the way of making the enquiry and coming to a finding by the learned trial Judge according to the law.

The suit being of 1989, the learned trial Judge should make the enquiry expeditiously and preferably within three months from the date of this order and come to a decision. At the same time, we must observe that this matter of representation cannot stand in the way of determining of alimony pendente lite and its due compliance u/s 24 of the Hindu Marriage Act.

In conducting the judicial enquiry the prima facie satisfaction of the Court is needed. In conducting such enquiry the learned Judge of the Court below may consider the educational attainment of the opposite party and her behavior during cross-examination. The Revisional application is disposed of. There will be no order as to costs.

S.K. Mookherjee, J.

I agree.