High Court
Case Details
CRP 314/2010 BEFORE HON’BLE MR. JUSTICE S. TALAPATRA
Legal Reasoning
Heard Mr. D. K. Das, learned senior counsel appearing for the petitioner . By this petition filed under Article 227 of the Constitution of India th e order dated 01.06.2010 as passed by the Munsiff No. 1, Nalbari in Title Suit N o. 3 of 2010 dismissing the Petition No. 369 of 2010 filed under Order XXXII, Ru le 15 CPC has been assailed. The Munsiff adjudged the plaintiff as the person of unsound mind and allowed his son namely, Sri Anjan Gogoi, to proceed with the s uit as the next friend by the said order. It appears from the impugned order that the Munsiff No. 1, Nalbari exami ned the person of unsound mind under reference personally without any support of the medical records/scientific examination and observed as under: (cid:28)Under these circumstances, though the plaintiff has not produced any me dical document, from the enquiry stated above, it is found and held that the pla intiff Sunil Gogoi is a person of unsound mind and his son (next friend) Anjan G ogoi is allowed to proceed with the suit. (cid:29) Previous to that observation, the mode and the manner the way person of unsound mind was examined has been described. It appears from that the Munsiff N o. 1, Nalbari (cid:28)put certain question to the plaintiff regarding his family occup ation etc. and from the answer given by him particularly regarding his occupati on, it is found that his behaviour is not normal (cid:29). Even if the said observation or finding is entirely believed then also no prudent person can arrive conclusiv ely to a decision that the person under reference is of unsound mind. The enquir y as referred under Order XXXII, Rule 15 of the CPC cannot be taken so casually as has been taken by the Munsiff No. 1, Nalbari. Therefore, the impugned order d ated 01.06.2010 is interfered with and set aside. Mr. Das, leaned senior counsel appearing for the appellant submitted tha t the purported enquiry as conducted by the Munsiff No. 1, Nalbari cannot be ter med as the enquiry within the meaning and ambit of the Rule 15 of Order XXXII of the CPC and he to buttress his contention has referred a decision of this Court in Jhabarmal Panda Vrs. Bhagawati Prasad Kedia, as reported in AIR 1990 Gauhati 35 where this Court held that: (cid:28)On a bare perusal of R. 15 it appears that the Rule contemplates tow ki nds of cases where a person is already adjudged to be of unsound mind as defined under the Lunacy Act. That would be the first category of persons of unsound mi nd whose cases are covered by the provisions of R. 15 of O. 32. There may be ano ther category of persons who are of unsound mind and not so adjudged by the Cour t. The second part of the provisions of R. 15 shows that in case of such persons who are not adjudged as persons of unsound mind but are found by the Court on e nquiry that by reason of unsoundness of mind or mental infirmity to be incapable of protecting their interest when suing or being sued. Once this finding is arr ived at the provisions of Rules 1 to 14 so far they may be applicable automatica lly get extended to the persons of those type. Rules 1 to 14 of O. 32 deal with the procedure to be followed when the plaintiff or the defendant is a minor. In case of person of unsound mind whether he is plaintiff o r defendant the provisi ons of R. 15 of O. 32 shall apply. The enquiry as contemplated by the provisions of R. 15 or O. 32 appears to be an ex-parte enquiry in absence of the other par ty, if the person happens to be the plaintiff. But if he happens to be the defen dant, he must make a prayer to Court through his n ext friend to allow him to b e represented by his next friend. It further appears that the aforesaid R. 15 provides an enquiry by the Court to be satisfied prima facie and to give a findi ng t hat the provision of O.32, Rr. 1 to 14 get extended because the person appe ars to be of unsound mind or having such mental infirmity thus making him incap able of protecting his own interest. It is clear that if the plaintiff happens t o be a person of unsound mind not being capable of protecting his interest he mu st file the suit through his next friend and the next friend should first apply and obtain a finding of the Court under the provisions of O. 32, R. 15 that the plaintiff is in fact a person of unsound mind. Similarly, if the defendant happe ns to be a man of unsound mind and not capable of protecting his interest, the n ext friend must make an application supported by an enquiry under O. 32, R. 15 of the CPC. (cid:28) While observing so, this Court relied on a decision in Somnath Vrs. Tipa nna Ram-chandra Jannu, reported in AIR 1973 Bombay 276. In another decision in Syed Hassari Raffakki Thangal and Others Vrs. Kal liath Thazha Chirutha and Others, reported in AIR 1998 Kerala 160, the Kerala Hi gh Court has similarly observed relying on the said decision of the Bombay High Court. Mr. Das, learned senior counsel also relied on another decision in Khokh a Rai Vrs. XII Addl. District Judge, Allahabad and Others, reported in AIR 1999 Allahabad 160 where the Allahabad High Court held that: (cid:28)The mere fact that the person has filed an application for appointment of guardian does not oblige the Court to ask the applicant to produce the eviden ce. It is for the applicant to produce the evidence. (cid:29) In the case in hand, this Court curiously finds that the objection/appli cation was filed by the defendant questioning the way the element of unsoundness was determined by the Court. It appears from the records so made available befo re this Court that no medical records or no other documents were submitted befor e the Munsiff No. 1, Nalbari for making the inquiry. The Munsiff No. 1, Nalbari definitely does not have the expertise to determine whether a person is of unsou nd mind or not since the referred person falls within the second category in vie w of the decision of this Court in Jhabarmal Panda(supra). Therefore, the Munsif f No. 1, Nalbari ought to have asked the applicant, the next friend, to produce evidence in proof of unsoundness of mind. It is fundamental obligation of the ne xt friend who came forward to represent the person of unsoundness. In view of the above, this matter is remitted back to the Munsiff No. 1, Nalbari to conduct a fresh enquiry into unsoundness of mind of the plaintiff an
Decision
d thereafter to proceed with the suit in accordance with law as prescribed. Accordingly, this petition stand allowed and disposed of.