Ranbir and others vs Tulsi and another

A.S. Bain, J.—A suit for declaration and possession filed by plaintiff-respondent No. 1 is pending before the trial Court against the defendant-petitioners.

During the pendency of the suit, Tulsi plaintiff filed an application under Order 32, rule 15, read, with section 151 of the CPC for appointment of next friend and guardian for the suit. In the application it was alleged that he was incapable of making statement by reason of infirmity as he was not in a position to express himself and speak properly. This application was resisted by the present petitioners and the following issue was framed by the trial Court:--

(1) Whether Shri Chandan Singh s/o Dhani Ram can be appointed court legal guardian as alleged in the application, if so, to what effect? OPP

(2) Relief.

The aforesaid issue was decided in favour of the plaintiff and Chandan Singh was appointed as court guardian of the plaintiff by the trial Court vide impugned order dated 5th April, 1982, which is challenged by way of this revision petition.

The precise argument of Mr. Kapoor is that the trial Court committed an error in holding that rules 1 to 14 of Order 32, Civil Procedure Code, are not applicable to the facts of the present case and that the trial Court has not read rule 15 of Older 32, which makes the provisions of rules 1 to 14 of Order 32 applicable to the persons of unsound mind He further submitted that the application under Order 32, rule 15,Civil Procedure Code, by Tulsi plaintiff'' was, not made in accordance with rules 2 and 3 of Order 32 and that these rules are mandatory and in view of the non-compliance of these rules, the Court had no jurisdiction to appoint Chandan as his court guardian.

The argument of Mr. Kapoor is misconceived. The provisions of Order 32 and rules under it are not applicable to the present case. These rules are applicable to the persons who are minor, or adjudged to be of unsound mind or are suffering from mental infirmity. The finding of the trial Court is that Tulsi plaintiff, does, not suffer from any such infirmity. This finding is based on the evidence adduced by the parties. Perusal of the evidence shows that Tulsi plaintiff was not a person of unsound mind but he could only commit errors to understand the suggestions and gesture and cannot speak properly. Both the doctors produced by the parties have not stated that the plaintiff-respondent is a person of unsound mind. I is true that the application by the plaintiff under Order 32, rule 15, Civil Procedure Code, is not supported, by any affidavit. But in the present case, the provisions of rule 15 of Order 32 are not applicable. It is settled law that where there is no specific provision under the Code to deal with a specific matter, the inherent powers of the Court u/s 151, Civil Procedure Code, can be invoked. Mr. Kapoor relied upon an authority of the Supreme Court reported as Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, wherein it was observed as under.--

The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure. Rule 4 of Order 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under O. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to S. 151 for setting aside such a decree.

But the aforesaid authority is of no assistance to the petitioners. Rather it supports the view that where there is an express provision in the Code to deal with a matter, resort to the provisions of section 151 of the Code cannot be taken. Since in the aforesaid authority there was an express provisions made under Order 37, rule 4, Civil Procedure Code, for cancellation or setting aside a decree, resort to section 151 of the Code was not open.

Mr. Kapoor also relied upon a decision of this, Court reported as Raja Ram and others v. Ram Sarup 1979 P.L.J. 154. This case is not applicable to the facts of the present case that case relates to remand by the Additional District Judge to the trial Court u/s 151 of the Code of Civil Procedure. The remand order can be made only tinder rules 23, 23-A or 25 of Order 41 of the CPC and that there is no power with the Court to pass a remand order, u/s 151 of the Code and since the remand order in the aforesaid case was not covered by arty of those rules of Order 41 of the Code, it was held to be erroneous and without jurisdiction. In Rameshwar Dass v. Bicha Ram 1979 P.L.J. 169 at page 170 it was observed by Sharma, J. of this Court as under:--

It is settled law that the CPC is exhaustive only about the matters specifically dealt with in it and in the absence of any express provision on a particular subject the Courts can pass appropriate orders in the interest of justice under their inherent powers.

Thus, I find that there is no error of law in the impugned order of the trial Court. The Provisions of Order 32, rule 15, do not, apply it the present case as the plaintiff Tulsi is not adjudged to be of unsound mind or is not found to be incapable, by reason of any mental infirmity, of protecting his interest in the suit. Chandan, court guardian, has no interest adverse to the interest of '' the plaintiff It is settled law that where there is no specific prevision in the Code to deal with the matter, the inherent jurisdiction of the Court u/s 115 of the CPC can be invoked. Revisional powers u/s 115 of the CPC an only be invoked by the High Court if the subordinate court appears to have exercised a jurisdiction not vested in it by law, or it failed to exercise a jurisdiction so vested or it acted in the exercise of is jurisdiction illegally or with, material irregularity. Reference in this behalf may be made to D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, In the present case, since the, plaintiffs case was not covered under Order 32, rule 15, Civil Procedure Code, as be was neither a minor nor a person of unsound mind nor suffered from any mental infirmity. I hold that the trial Court while granting the application for appointment of Chandan as court guardian of the plaintiff has properly exercised its inherent powers u/s 151 of the CPC in the interests of justice as Tulsi plaintiff was physically incapacitated due to defect in his speech and understanding the whole matter properly.

For the reasons recorded no case is made out for invoking the revisional powers of this Court u/s 115 of the Code of Civil Procedure.

In the result this petition fails and it is dismissed with costs.