ORDER
B.N. Dash, J.
1. This revision is directed against the order dated 4-10-1986 passed by the learned Subordinate Judge, Deogarh under Order 32, Rule 15 C.P.C. allowing Ratnakar Pradhan (O.P. No. 2) to represent Balabhadra Pradhan (O.P, No. 1) as his guardian.
2. The petitioners as plaintiffs instituted Title Suit No. 4/1985 in the Court of the Subordinate Judge, Deogarh against the O.P. 1 who was more than 90 years of age for partition of certain joint family properties. In that suit O.P. 2 filed a petition to allow him to act as guardian and next friend of O.P. 1 alleging that the O.P. 1 due to his old age was physically and mentally infirm. The petitioners filed objection to this O.P. No. 1, after his appearance in Court, was sent to the Sub-Divisional Medical Officer, Daogarh for medical examination. It appears that the Medicine Specialist attached to the Sub-Divisional Hospital, Deogarh examined O.P. No. 1 on 11-7-1986 and on the basis of the opinion further by him, the S.D.M.O., Deogarh sent his medical report to the Court which is as under:–
“Sri Balabhadra Pradhan S/o late Banamali Pradhan of village Bidido P. S. Reamal was examined by the Medicine Specialist of S.D. Hospital, Deogarh on 11-7-86. As per the report of the Specialist the age of Sri Pradhan is more than 90 years. Due to old age Sri Pradhan is not able to hear properly and his reactions have been slowed down and he is not able to remember past events at times. It is advisable to appoint one guardian to look after his interests. His signature is attested below.”
On seeing O.P. 1 and on the basis of the aforesaid medical report, the learned Subordinate Judge came to hold that O.P. No. 1 was physically and mentally infirm and as such he was unable to protect his interest in the litigation. Accordingly, he allowed the petition filed by O.P. No. 2 by his order dated 4-10-1986 which is assailed in this revision. Shri Mantry, learned counsel for the petitioners contends that by application of Order 32, Rule 15 C.P.C. the learned Subordinate Judge went wrong in appointing O.P. No. 2 as guardian of O.P. No. 1 without conducting any enquiry. Order 32, Rule 15 C.P.C. reads as follows:–
“Rules 1 to 4 (except Rule 2-A) 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 interests when suing or being sued.”
This rule is applicable to two categories of persons, the first category being persons of unsound mind and the second category being persons found by the Court on inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when send or being sued. It was not the case of O.P. 2 that O.P. 1 was of unsound mind. So O.P. 2 could be appointed as guardian of O.P. 1 if the latter is held by the Court to be incapable of protecting his interest by reason of any mental infirmity and a finding on that score in the affirmative is arrived at on the basis of some inquiry as clearly enjoined in the aforesaid rule. Shri Mantry submits that there was no inquiry whatsoever conducted by the learned Subordinate Judge and the impugned order is based solely on the medical report, as quoted above. According to the learned counsel, although a petition had been filed by the petitioners to summon the Medical Officer for the purpose of cross-examination, the same was not allowed and in the absence of any cross-examination the medical report could not have formed the basis for the conclusion arrived at by the learned Subordinate Judge.
3. In Mayadhar Samant v. Birabar Kuanr, 1961 (3) OJD 259 the question as to Whether there should be an inquiry or not by the Court concerned under Order 32, Rule 15 C.P.C. came up for consideration before this Court and it was held thus :–
“The settled position in law is that in a matter like this for determination of the question of alleged insanity of a party, it is deemed necessary that the party, alleged to be insane, may be got examined by a medical expert and a certificate obtained from him as to whether he is mentally fit to protect his interest; the Court must conduct on enquiry into the alleged mental infirmity of the person and come to a definite conclusion that the alleged act is well founded before proceeding to appoint guardian for him.
xxx xxx xxx xxx”
In this case it is seen that no witness has been examined by the learned Subordinate Judge to take a decision as to whether the O.P. 1 was mentally infirm or not. He does not appear to have put any question to O.P. 1 to satisfy himself about his mental infirmity. The medical report submitted by the S.D.M.O., Deogarh has been relied upon by him although the S.D.M.O. himself, as the report shows, had not examined O.P. 1 The S.D.M.O. has submitted the report basing on the opinion said to have been furnished by the Medical Specialist to him which has not been referred to by the learned Subordinate Judge. It is further seen that neither the S.D.M.O. nor the Medicine Specialist has been subjected to cross-examination by the petitioners. On these facts, it can hardly be said that there was any inquiry by the learned Subordinate Judge to ascertain whether O.P. No. 1 was mentally infirm or not. Without such inquiry, the impugned order having been passed it can very well be said that the learned Subordinate Judge failed to exercise jurisdiction vested in him by law and as such the impugned order cannot be sustained.
4. In the result, therefore, the revision is allowed and the impugned order dt. 4-10-1986 passed in title Suit No. 4 of 1985 is hereby set aside. There will be no order as to costs as there is no appearance of the opposite parties.