The High Court
Case Details
Order No. 1. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 184 of 2023 Amulya Kumar Biswal …. Petitioner Mr. Rabi Narayan Behera, Advocate -versus- Bijayalaxmi Biswal …. Opp. Party CORAM: JUSTICE K.R. MOHAPATRA
Decision
ORDER 01.03.2023 1. This matter is taken up through Hybrid mode. 2. Order dated 1st December, 2022 (Annexure-8) passed by learned Civil Judge (Junior Division), Salipur in CS No.99 of 2014 is under challenge in this CMP, whereby an application filed by the Defendant under Order XXXII Rule, 3, 4 and 15 CPC has been rejected. 3. Mr. Behera, learned counsel for the Petitioner submits that the Defendant is the Petitioner in this CMP. During pendency of suit, he developed lunacy and is under treatment at Mental Health Institute, SCB Medical College, Cuttack. Accordingly, he filed an application for appointment of a guardian on his behalf enclosing OPD ticket, to defend his case. The said application was rejected vide order dated 11th August, 2022. Assailing the same the Petitioner had filed CMP No.866 of 2022 before this Court. The said CMP was disposed of vide order dated 27th October, 2022 with the following direction. “6. Considering the rival contentions of learned counsel for the parties and on perusal of the record, this Court finds that the OPD ticket annexed to the CMP as Annexure-2 issued by the Mental Health Institute, SCB Medical College and Hospital, Cuttack Page 1 of 4 // 2 // is not sacrosanct to come to a conclusion that the Defendant-Petitioner is of unsound mind. It is, however, submitted by learned counsel for the Petitioner that the Petitioner should have filed documents to show that unsoundness of mind of the Defendant is of such nature that a guardian is required to be appointed. True it is that if the party to the suit is of unsound mind, a guardian or a next fried, as the case may be, should be appointed to represent his case. But, in the instant case, although some evidence is available to the effect that the Petitioner is being treated at Mental Health Institute of SCB Medical College and Hospital, Cuttack, but the same is not sufficient to consider an application for appointment of a guardian on his behalf. 7. In that view of the matter, the CMP is disposed of with a direction that in the event an application is filed with better particulars and documents for appointment of a guardian of the Defendant within a period of three weeks hence along with certified copy of this order, the same shall be considered by learned trial Court in accordance with law giving opportunity of hearing to the parties concerned and also giving opportunity to the Plaintiff-Opposite Party to file objection. Till disposal of the petition, as aforesaid, the impugned order under Annexure-4 shall be kept in abeyance, which shall be subject to the result of the order to be passed in the said petition.” Accordingly, the Petitioner filed the instant application. Learned trial Court under misconception of law held that the Petitioner could not produce any document in support of his lunacy and rejected the application. Hence, this CMP has been filed. 4. It is submitted by Mr. Behera, learned counsel for the Petitioner that when an application under Order XXXII Rules 3, 4 and 15 is filed, it is the duty of the Court to make an enquiry with regard to mental health/lunacy of that person for whom guardian/next friend is sought to be appointed. He also placed reliance on a decision of this Court in the case of Rukmani Bewa Vs. Radhika Parida, reported in 33 (1991) OJD 444 (Civil), wherein this Court at paras-7 held as under:- Page 2 of 4 // 3 // “7. It is true that any person can file a suit on behalf of a lunatic as a nest friend. However, when challenged, an enquiry is to be made about the mental capacity of the person alleged to be lunatic to find that by reason of mental infirmity, he would not be able to protect his interest when suing. In such enquiry next friend attributing lunacy to the plaintiff is to prove the same. Where a forum has been created under a Statute to adjudicate the dispute relating to lunacy, Court would do well to direct parties to get the question adjudicated and all grant time to initiate the proceeding. Where, however, arrest of the progress of the suit is likely the very object of filing the same, it may proceed with the enquiry as envisaged under Order 32, Rule 15, C.P.C.. In case this case is not taken, litigations may be instituted by undeserving persons in name of another by describing the said person to be of unsound mind to drag the defendants to a litigation to their detriment. A Court where a suit is filed should take adequate care for exercising the discretion.” In view of the ratio decided in Rukmani Bewa (supra), Mr. Behera, learned counsel for the Petitioner submits that upon receipt of an application under Order XXXII Rules 3, 4 and 15 CPC, learned trial Court ought to have made enquiry as contemplated under Rule 15 CPC and proceeded to adjudicate the matter. Conversely, learned trial Court adjudicating the petition placing burden on the Defendant/Petitioner to produce document in support of his case, rejected the petition, which is not just and proper. Accordingly, he prays for setting aside the impugned order under Annexure-8 and to remit the matter back to learned trial Court for fresh adjudication of the petition making an enquiry as provided under Rule 15 of Order XXXII CPC. 5. Considering the submission made by learned counsel for the Petitioner and on perusal of record, it appears that while disposing of CMP No.866 of 2022, this Court has categorically directed that in the event, the Petitioner files an application with Page 3 of 4 // 4 // better particulars and documents for appointment of a guardian of the Defendant/Petitioner, the same should be considered in accordance with law. Thus, in compliance of the said order, the Petitioner filed a fresh application for appointment of a guardian of the Defendant/Petitioner. It is also submitted by Mr. Behera, learned counsel that the Petitioner is still under treatment at Mental Health Institute, SCB Medical College & Hospital, Cuttack, since the Petitioner could not obtain document in support of his treatment, he sought for intervention of the Court to call for the same from the Mental Health Institute, SCB Medical College, Cuttack. Submission of Mr. Behera cannot be accepted as while disposing of the earlier CMP, this Court had directed the Petitioner to produce the documents in support of his treatment of mental health. It is not believable that the Petitioner being under treatment in the Mental Health Institute of SCB Medical College does not possess any document in support of his treatment. Question of enquiry under Rule 15 of Order XXXII CPC will come when there is a dispute with regard to mental health/unsoundness of a person is raised by the adversary. In the instant case, such an occasion does not arise, as the Petitioner prima facie failed to establish that he is of unsound mind by producing documents. Thus, learned trial Court has committed no error in rejecting the said application. 6. Accordingly, the CMP being devoid of any merit stands dismissed. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4