Swapan Dutta vs Kaustav Ranjan Ghosh & Anr.

This revisional application has been filed under a peculiar circumstance, where the applicant, Smt. Alpana Dutta, alleges that the plaintiff/opposite

party has instituted a regular suit, bearing Title Suit No. 822 of 2017 in the court of the Civil Judge (Senior Division) at Chandannagar, District-

Hooghly against Sri Swapan Dutta, the husband of the applicant. According to the applicant, Sri Swapan Dutta is of unsound mind and, as such, ought

to have been described as such and the applicant be impleaded as the next friend of Swapan Dutta.

On the basis of such allegations, an application was taken out by the applicant in the court below under Order XXXII Rule 15 of the Code of Civil

Procedure for allowing the applicant to be appointed as next friend/guardian of the defendant to contest the suit.

A second application was also preferred by the applicant praying for an enquiry to ascertain whether the defendant is incapable by reason of mental

infirmity of protecting his interest when being sued. A medical certificate was annexed to such application, which showed that the defendant Swapan

Dutta has been suffering from advanced Parkinsons disease, however, without specifically mentioning anything as to unsoundness of mind or mental

infirmity.

Another medical certificate has been annexed to the instant application under Article 227 of the Constitution of India where it has been stated that the

defendant is suffering from mental infirmity. However, such document was not before the court below.

It appears that the trial court, by the impugned order dated April 02, 2018 rejected the application under Order XXXII Rule 15 of the Code of Civil

Procedure on contest merely upon a perusal of the medical certificate produced by the petitioner without taking up for hearing the other application for

enquiry as to mental soundness or otherwise of the defendant.

Since it is incumbent upon the court below to conduct an enquiry as to the mental soundness or otherwise of a party if a cloud is raised in that regard

even if by a third party, the trial court prima facie committed a jurisdictional error in not adverting to the merits of the application made by the applicant

for holding an enquiry to that effect.

The petitioner, represented by the applicant, is accordingly directed to serve a copy of C.O. No. 873 of 2018 upon the opposite party intimating the

opposite party that the matter will next appear in the monthly list of June, 2018 as a listed motion.

There will be an order of stay of operation of the impugned order dated April 02, 2018, passed by the Civil Judge (Senior Division) at Chandannagar,

District-Hooghly in Title Suit No. 822 of 2017 to the extent that appearance of the defendant was directed by the court below, till disposal of this

revisional application. Petitioner will file an affidavit of service on the next date of hearing.