Smt Muniyamma and Others vs Smt Ramani Bai and Smt Varalaskhmi

Hon''ble Mrs. Justice B.V. Nagarathna

Though this writ petition is posted for orders, with the consent of counsel on both sides, it is taken up for final hearing.

This writ petition is filed by the plaintiffs in O.S.No.562/2004, being aggrieved by the order dated 16.7.2011, passed on I.A.No.6 which is an application filed under Order 32 Rule 3 read with Section 151 of CPC.

The relevant facts of the case are that the petitioners herein have filed a suit for partition and separate possession of the suit schedule properties against respondent Nos. 1 and 2. During the pendency of the suit, an application under Order 32 Rule 3 read with Section 151 of CPC seeking appointment of a guardian for defendant No. 1 was filed by contending that she is a person of unsound mind. The said application has been dismissed. As against the said order, this writ petition has been filed.

I have heard the learned counsel for the petitioners and learned counsel for respondent No.2. Respondent No.1 though served before the trial court, has not appeared and has been placed exparte. Perused the material on record.

Having regard to the fact that the petitioners herein are seeking appointment of a guardian for respondent No. 1 by contending that she is a person of unsound mind. The petitioners herein could have sought for an enquiry on the said application and in the said enquiry all the documentary and oral evidence with regard to unsoundness of mind of defendant/respondent No.1 could have been placed on record. In the absence of there being any enquiry, the trial court was justified in dismissing the said application. However, I am of the view that having regard to the nature of the relief claimed by the petitioners herein, it would be just and necessary that an enquiry be held on the application filed under Order 32 Rule 3 read with Section 151 of CPC and thereafter fresh orders be passed on the said application. Under the circumstances, the order dated 16.7.2011 is quashed reserving liberty to the petitioners herein to seek permission to let-in evidence on the said application. It is only thereafter, that the said application shall be re-considered on merits.

In the result, the writ petition is disposed of with the said observations. It is needless to observe that since the suit is of the year 2004, the trial court would dispose of the suit as expeditiously as possible.