BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22/03/2007
CORAM :
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
C.R.P.PD.(MD).No.180 of 2007
and
M.P.(MD).No.1 of 2007
P.N.S. Sindha Madhar ... Petitioner
Vs.
1. S. Akkani Beevi
2. S. Mohammed Hanifa
3. P.S.A. Parveen Banu
4. P. Hariharan
5. K. Renuka Devi
6. T. Pappathi
7. K. Petchiammal
8. S. Jeyanthi
9. K. Parvathi
10. S. Tajudeen
11. S. Jahangir
12. The Sub Regisrtar
Madurai No.2
South District Registrar
Palace Road, Madurai -1. ... Respondents
Prayer
Petition filed under Article 227 of the Constitution of India to set
aside the Fair and Decreetal order dated 06.11.2006 made in I.A.No.576 of 2006
in O.S.No.262 of 2006 on the file of the First Additional Sub-Judge, Madurai.
!For Petitioners : Mr. M. Muthugeethaiyan
^For Respondents R1,10&11 : Mr. M. Vallinayagam
R2-9 : Mr. P. Subramaniam
R 12 : Mr. D. Gandhiraj, G.A
:ORDER
The plaintiff in O.S.No.262 of 2006 on the file of the First Additional
Sub Judge, Madurai is the revision petitioner.
2. The petitioner/plaintiff filed O.S.No.262 of 2006 against the
respondents herein for declaration, mandatory injunction, prohibitory injunction
and other reliefs in connection with the ‘A’ and ‘B’ schedule properties as
mentioned in the plaint. The petitioner/ plaintiff filed I.A.No.576 of 2006
under Order 32 Rule 3, 15 and under Section 115 of C.P.C., to appoint a suitable
person as next friend to the insane first defendant/first respondent herein to
proceed and conduct the suit on behalf of her.
3. It is stated by the petitioner/plaintiff in the affidavit filed in
support of the application in I.A.No.576 of 2006 that the first defendant in the
suit is an insane person for the past 40 years and the defendants 10 and 11
(Respondents 10 and 11 herein), who are the sons of the first defendant, created
some document by taking advantage of the lunacy of their mother. Hence the
situation warrants a person, other than the defendant 10 and 11, is to be
appointed as a next friend of the first defendant.
4. The first defendant herself filed a counter affidavit in I.A.No.576 of
2006 by stating that she is not an insane person. She further stated that the
plaintiff is her younger brother and in order to grab her properties, the
plaintiff is alleging her as insane, knowing fully well that she is a sane
person. After filing a counter affidavit in I.A.No.576 of 2006 sworn on
24.07.2006, the first defendant has also filed a written statement in the suit,
which was verified by her on 20.08.2006.
5. By order dated 06.11.2006, the trial Court dismissed I.A.No.576 of 2006
and aggrieved by the order, the above C.R.P. has been filed under Article 227 of
the Constitution of India.
6. Heard the learned counsel for the petitioner and the learned counsel
for the respondent No.1,10 and 11 and the learned Government Advocate for the
12th respondent. I have also gone through the documents and the judgments filed
and referred to by them in support of their submissions.
7. The learned counsel for the revision petitioner submitted that the
Court below ought to have examined the mental status of first respondent with
the assistant of a Doctor before deciding the application. As there was no
enquiry conducted by the Court below to ascertain the mental status of the first
respondent, the order is to be set aside. He relied on the decision of the
Supreme Court reported in 2003(2) CTC 276 (Kasturi Bai and Others Vs. Anguri
Chaudhary) and the decision of this Court reported in 2006(4) CTC 657(C.S.
Navamani Vs. C.K.Sivasubramanian).
8. Per Contra, the learned counsel for the first respondent and the
respondent 10 and 11 submitted that the petitioner has no locus-standi to
maintain the application under Order 32 Rule 3 and 15 of C.P.C and even
otherwise, an enquiry was conducted by the trial Court by personally examining
the first respondent in the open court. He relied on the decision of Patna High
Court reported in AIR 1985 PATNA 366 (Smt. Godawari Devi Vs. Smt. Radha Pyari
Devi and others).
9. I have considered the rival submissions carefully with regard to the
facts and citations.
10. The stand of the revision petitioner, who is the younger brother of
the first respondent, before the trial Court is that his elder sister is an
insane person for the past 40 years. It is also an admitted fact that first
respondent has not been adjudged as an insane person in any previous
proceedings.
11. Order 32 of C.P.C deals with suits by or against minors and persons
of unsound mind. Rule 15 of Order 32 is very relevant for the purpose of this
case as this Rule stipulates that rules 1 to 14(except Rule 2A) shall, so far as
may be, apply to persons adjudged before or during the pendency of the suit to
be of unsound mind and shall also apply to persons who, though not so adjudged,
are found by the Court on enquiry to be incapable, by reason of any mental
infirmity, of protecting their interest when suing or being sued. Thus, Rule 15
of Order 32 deals with two types of persons namely (1) persons already adjudged
as persons of unsound mind and (2) persons who are not adjudged as persons of
unsound mind. In so far as the first category of persons concerned, there are
no difficulties in applying the provision of Order 32 of C.P.C. In so far as
second category of persons concerned, the provisions of Order 32 will become
applicable only when the Court finds them on enquiry to be incapable of
protecting their interest by reason of any mental infirmity.
12. In the present case, the revision petitioner filed I.A.No.576 of 2006
to appoint a next friend to defendant/first respondent as she is an insane
person for the past 40 years. But the first respondent herself filed a counter
affidavit denying the same. She has clearly mentioned in the counter affidavit
that she had already appeared before the trial Court once, ie., on 18.07.2006
and her sworn statement was recorded by the Court. Only after satisfying that
she is a normal person, her vakalat was recorded by the Court on 18.07.2006.
She has also referred to the earlier Court proceedings which was filed by her in
L.A.O.P.175 of 1984, O.S.No.1504 of 1986, O.S.No.125 of 1989 and A.S.No.75 of
1997. Infact, O.S.No.125 of 1989 and A.S.No.75 of 1997 were jointly contested
by the revision petitioner and the first respondent herein and the revision
petitioner himself filed an affidavit in A.S.No.75 of 1997 on behalf of the
first respondent also. It was not raised at that time that first respondent is
an insane person, even though the stand of the revision petitioner is that she
is an insane person for the past 40 years. Before the trial Court, eight
documents were filed by the petitioner and 20 documents were filed on behalf of
the first respondent and the trial Court after carefully evaluating the same to
the conclusion that first respondent is not proved to be an insane person for
the past 40 years and dismissed the application.
13. The main contention of the revision petitioner is that no enquiry was
conducted by the trial Court by examining the mental status of first respondent
by a competent doctor before deciding the application.
14. In 2003(2) CTC 276)cited supra), the Supreme Court held as follows:
“Para 9. Shri Jain, therefore, has rightly submitted that the order of the
learned Single Judge must be held to have merged with the order of the Division
Bench.
Order 32, Rule 15, C.P.C. Reads thus:
“15. Rules 1 to 14(except rule 2A) to apply to persons of unsound mind – Rules 1
to 14(except Rule 2A) shall, so far as may be, apply to persons adjudged, before
or during the pendency of the suit, to be of unsound mind and shall also apply
to persons who, though not so adjudged, are found by the Court on enquiry to be
incapable, by reason of any mental infirmity, of protecting their interest when
suing or being sued.”
Para 10. On a bare perusal of the said provision, it is evident that the Court
is empowered to appoint a guardian in the event a person is adjudged to be of
unsound mind. It further provides that even if a person is not so adjudged but
is found by Court on inquiry to be incapable of protecting his or her interest
when suing or being sued by reason of any mental infirmity, an appropriate order
thereunder can be passed. The respondent did not contend that appellant No.1,
herein is of unsound mind. As noticed herein before, the respondent herself had
filed an application before the trial Court for holding an inquiry to the effect
that she suffers from mental infirmity.
Para 11. The learned trial Court refused to do the same and in that view of the
matter the High Court, in our opinion, while setting aside the said order could
only issue a direction directing the learned trial Judge to hold an inquiry so
as to enable it to arrive at a finding as to whether the respondent herein was
incapable of protecting her interest by reason of any mental infirmity or not.
As no such inquiry was held, there cannot be any doubt whatsoever that the
learned Single Judge committed a jurisdiction error in passing the impugned
judgement which, the Division Bench as noticed hereinbefore upheld.”
15. In 2006(4) CTC 657 (cited supra) this Court held as under:
“Para.24. The enquiry contemplated under Order 32, Rule 15, is mandatory, to
ascertain the mental state of mind of a person, before he is adjudged as unsound
or mentally infirm, The word “enquiry” used in the provision means, “to make an
examination”, to adjudge a person judicially as a lunatic or mentally infirm.
“Adjudge” means, “to decide or to determine judicially”, which means that there
must be adequate materials to come to such conclusion, that a person has to be
represented by a guardian.
Para.25. When there is an allegation of unsound mind or mental infirmity, it is
the duty of the Court to examine the individual and if necessary, seek the
assistance of an expert to adjudge as to whether the individual is having a
sound mind and capable of managing the affairs. As a precaution, the evidence
of expert in the Medical profession will be useful in understanding the meaning
and the symptoms of an6y disease dealing with mental deterioration.
Para 26. In the present case, such a course has not been followed and therefore,
there is no doubt that the Court below has failed to adjudge the respondent as
mentally infirm, necessitating the appointment of a guardian. Equally while
removing the Court guardian the lower Court has simply observed that the
respondent had appeared before the Court and shown his mental faculties and is
capable of defending himself. Not even questions were posed to the respondent
to ascertain as to whether he can understand and answer the same. Mental
faculty is a broad term and it is beyond comprehension as to how the Court below
can come to any conclusion by mere observation, particularly when the respondent
had suffered from loss of memory, etc.
16. Relying on the above two decisions, the learned counsel for the
revision petitioner contended that first respondent should be subjected to
medical examination to adjudge as to whether she is having a sound mind. In AIR
1985 PATNA 366 (cited supra) a Division Bench of the Patna High Court held that
the issue of the mental stability of a person who has not been adjudged as
insane in an earlier proceedings is a matter entirely between the Court and the
party alone and nobody else has any vested interest or right to agitate the
unsoundness of mind of his opponent. The relevant portion of the judgment reads
as under:
“Para 6. It is common ground that herein we are not dealing with the category of
persons adjudged to be of unsound mind. That different considerations would be
attracted in their case is patent and, therefore, this category may, for all
purposes, be left altogether apart. Adverting now to the second category, it
seems plain that the issue of unsoundness of mind of the parties in this class
is primarily betwixt the Court and the party and is certainly not a lis betwixt
the parties themselves. The legislature in its wisdom has conferred a larger
and paternal power on the Court to see that each party has the capacity to
safeguard its legal interest and is no way handicapped by reason of any mental
infirmity. It is equally significant to notice that this broad-based power
extends in cases of any mental infirmity and is not necessarily governed by the
extreme situation of a person being of unsound mind altogether. To my mind,
this beneficial and, indeed, paternal power is wholly vested in the Court and it
is in its discretion alone, where it finds that any one of the parties is
suffering from a weakness of mind, to proceed for taking steps to safeguard the
interest of such a party. To use the language of another jurisdiction, namely,
that of contempt, the list herein is betwixt the Court and such a party and not
betwixt the opposite parties as such. As has been said in that jurisdiction,
the issue of contempt is primarily between the Court and the contemner, and even
more so under. O 32 R.15 in its second category, it is a matter entirely
between the Court and the party alone and nobody else has any vested interest or
right to agitate the unsoundness of mind of his opponent in this class. To put
it tersely, it is not an issue betwixt the parties and neither the plaintiff nor
the defendant has the locus standi to challenge or question the soundness of
mind of the opposite side and claim an adjudication thereon at the very
threshold. If this were to be so permitted in this field, there would, perhaps,
be no end to allegations and counter allegations in this regard and its misuse
would be capable of working grave public mischief.”
17. Relying on the above decision, the learned counsel for the first
respondent submitted that as the Court was satisfied that the first respondent
is sane person, it is not for the revision petitioner to challenge the same.
18. In the decision reported in 2003 (2) CTC 276 (cited supra)the person
herself filed an application before the trial Court for holding an enquiry to
the effect that she suffers from mental infirmity. In the other decision
reported in 2006(4) CTC 657 (cited supra), an application has been filed under
Order 32 Rule 4 and 15 to appoint a guardian to the respondent as he is an
insane person and the trial Court proceeded exparte and without examining the
respondent appointed a Court guardian. Thereafter, the respondent filed an
application to set aside the order of appointment of guardian as he has
recovered from his mental illness and the trial Court removed the guardian.
Only in the above said of facts, decisions were given by the Supreme Court as
well as our High Court and the facts in these decisions are easily
distinguishable.
19. In the present case, it was asserted by the revision petitioner that
the 1st respondent has been an insane person for the past 40 years. But the
revision petitioner himself along with the first defendant defended Court
proceedings together from 1989 to 1997 in O.S.No.125 of 1989 and A.S.No.75 of
1997. Infact, when the lands of the petitioner and the first respondent were
acquired by the Government, both of them appeared before the Special Tahsildar
for enquiry proceedings. In such circumstances, there is no bonafide on the
part of the revision petitioner in contending that first respondent has been an
insane person for the past 40 years. Moreover, even before recording the
vakalat filed by the counsel on behalf of the first respondent, the first
respondent appeared before the trial Court on 17.10.2006 and her mental
stability was gone into at that time by the Court and only after getting satisfy
that the first respondent is not an insane person, the trial Court permitted the
counsel to appear on behalf of the first respondent. Therefore, it cannot be
said that there was no
S. RAJESWARAN, J.
ARUL
enquiry at all by the Court to ascertain the mental condition of the first
respondent. Further subjecting a person, to medical examination is not
compulsory in all the cases and only if necessary a person could be subjected to
medical examination.
20. I am satisfied that there are adequate materials to prove that the
claim of the revision petitioner is not bonafide and there is no illegality in
the order of the trial Court warranting interference under Article 227 of the
Constitution of India.
21. In the result, there are no merits in the above Civil Revision
Petition and the same is dismissed. No Costs. Consequently, connected M.P. is
also closed.
ARUL
To
The First Additional Sub Judge,
Madurai.