ORDER
1. A suit instituted by a person described as one who is mentally incapable to look after his interest, through his next friend, is still at the threshold of commencement of the proceedings. The plaintiff brought the suit through his next friend describing himself to be mentally infirm and unsound. It is seen, that initially no application was made by the next friend to be permitted to represent the plaintiff as such and no enquiry was conducted by the Court in this behalf earlier. The defendant appeared and contested the capacity of the next friend to bring the suit as
according to him, the plaintiff is neither infirm nor lunatic nor of unsound mind. On his context Issue No. 1 was framed as under:
“Whether the plaintiff is mentally infirm and of unsound
mind”.
2. Thereafter the plaintiff filed LA. X to treat the above said issue as a preliminary issue.
3. In that proceedings the plaintiff got a commissioner appointed – a qualified Doctor attached to NIMHANS Hospital – to examine the plaintiff, and his evidence was recorded as P.W. 1. It is found therein that the plaintiff was mentally incapable to maintain the suit, and that the suit be brought by the next friend. It hence held Issue No. 1 referred to above be treated as a preliminary issue. By order dated 24th February, 1993, the said I.A. was allowed. In doing so, the Court had conducted a detailed examination to ascertain the capability of the plaintiff to bring the suit independently, the contention whether it should have initially undertaken an enquiry in this behalf, what is the effect of not making an application under Order 32, Rule 15 of the CPC, whether the plaint should have been returned for that reason etc. These objections of the defendants were overruled and Issue No. 1 was treated as a preliminary issue. The said order was challenged in revision before this Court in CRP No. 2577 of 1993. By order dated 15th September, 1993 that CRP was dismissed confirming the order declaring Issue No. 1 to be the preliminary issue. Thereafter the preliminary issue was considered by the impugned order the said preliminary issue was tried and answered in favour of the plaintiff. The said finding on the issue is challenged in this CRP.
4. I have heard Mr. S.P. Shankar, learned Counsel for the petitioner at length. He elucidated the scope and ambit of inquiry under Order 32, Rule 15 of the CPC and contended that the Court has committed an infallible error in not having initially conducted an enquiry at the threshold when the plaint was presented which in fact would be the procedure to be adopted by the Court, being the combined effect of the operation of Order 7, Rule l(d) read with Order 32, Rule 15 of the CPC. In this behalf he invited my attention to various authorities, namely:
1. Somnath v Tipanna Ramchandra Jannu;
2. B.K. Khanna v K.N. Khanna and Others;
3. Mohammed Ibrahim Ummal v Sheik Mohammed Marakayar;
4. Duvvuri Rami Reddi u Duvvudu Papi Reddi and Others;
5. Joti Sarup and Others v Kamle Singh and Others;
6. Prosanna Ram Ghosh and Others v Anfar Ali and Others;
7. Baiju Lal Pathak v Smt. Maina Dai and Others;
8. Duvvuri Papi Reddi and Others v Duvvuri Rami Reddi;
9. Balakrishnan v Kalliyani;
10. Syed Hassan Baffakki Thangal and Others v Kalliath Thazha Chirutha and Others;
11. Jhabarmal Panda v Bhagawati Prasad Kedia.
There are other decisions rendered by other High Courts as well. But the above will suffice to indicate the view taken by the cross section of High Courts. Mr. Shankar, who has done his home work extremely well, did persuade me to declare the procedure to be adopted by the Courts in such contingencies. In the view I am taking in this case, I feel, at this juncture, it is quite unnecessary for this Court to dwell on this aspect except briefly indicate the procedure that may be followed. According to me, the answer to the riddle can be found from Order 7, Rule 1, Order 7, Rule 11, Order 32, Rule 2 and Order 32, Rule 15.
5.Order 7, Rule 1(d) contemplates that the plaint shall contain among others, a statement as to whether the plaintiff is a minor or a person of unsound mind. Rule 11 thereafter lays down the grounds on which the plaint can be rejected; and a finding entered on the averments made in accordance with Rule 1(d) is not made specifically a ground for such rejection. The grounds made mention of under Rule 11 investigation arises at the pre-appearance stage of the defendant. It means obviously, the inquiry being conducted by the Court in this behalf need not yield any fatal result to the plaint. Read with Order 32, Rule 4(2) the finding on the said statement, may at best only invite the further stage of appointing an appropriate guardian for the disabled plaintiff to prosecute the suit. Nevertheless, it is to be noted that a finding that the plaint need not be rejected at the preliminary stage is not a finding that would bind the defendant as well. As such, even if the Court finds that the plaint is properly presented this will not preclude the right of the defendant to agitate this aspect. This is clear when we advert to Order 32 which deals with the institution of proceedings by or against the minor/mentally incapable plaintiff/defendant. Rule 2(1) thereof states that–
“. . . . the defendant may apply to have the plaint taken of the file…..”.
This means, the defendants’ right to contest the status of the guardian to represent plaintiff arises even at a later stage after the summon is issued to him after the preliminary inquiry.
6. In the instant case, the Trial Court no doubt had not conducted a preliminary inquiry when the plaint was presented. This enquiry may be imperative as it can be seen from the provision of Order 32 of the CPC. Because, even if the plaintiff is not properly represented in the case, be he a minor or mentally unsound person, under Order 32, Rule 4 it is incumbent on the Court to make an inquiry (independent of defendants’ objection) and appoint a guardian or next friend if there is no guardian. Such a defect may clothe the Court with the power either to appoint a Court Guardian to represent the plaintiff (vide Order 32, Rule 4(2)). In this context we may advert to what the Bombay High Court said in Somnath’s case, supra.
“13. Nowhere do we find in this procedure a provision for the next friend to apply either for getting himself appointed as the next friend or to seek a permission of the Court to present the plaint or pursue the litigation on behalf of a minor. It is entirely different that the defendant after entering appearance, may point out either by a written – statement or otherwise that the plaintiff is not a minor, and the suit presented on his behalf is not proper. The Court, undoubtedly, has the right to decide the issue when so raised by the defendants, and if satisfied that the so-called minor was in fact a major, the Court could come to the conclusion that the suit was not properly presented and the plaint may be struck off the file. In such a case, it means that the plaintiff was in fact a major, and when a person is major, primarily it is his and his right alone to file or not to file a suit or to defend or not to defend the case against him. None else has a right to act on his behalf. It is on those principles that a wrong person has come before the Court, that the suit will be thrown out”.
7. With great respect, I should state that this statement may not be wholly correct. When, the plaintiff is not properly represented, it is not mandatory that the suit should be thrown out. Sub-rule (2) of Rule 3 of Order 32 contemplates of an appointment of guardian or declaration by a competent authority of a guardian to the disabled plaintiff. That means, the effect of the rule is that it postulates a stage when the Court has initially to ascertain whether the plaint is validly presented, or the plaintiff is properly represented by a guardian, in case he is in any way disabled. In the case of the minor, on proof of minority, while in the case of a person of unsound mind, on proof of such disability, a guardian may be appointed by the Court, or it can approve the authority of the person who represent the plaintiff and acts as his guardian/next friend. This is a judicial process, a stage obviously before Order 7, Rule 11 stage is reached. And when that stage is crossed, the plaint cannot be rejected
under Order 7, Rule 11. Therefore, that is the first stage. And later, a right is conferred on the defendant to contest this status of the plaintiff as envisaged in Order 32, Rule 2. The earlier finding, will not in any way debar the defendant from doing so. Perhaps, the right conferred thereunder is akin to the right of a defendant under Order 33, Rule 9 of the CPC. In this behalf we may notice what the Delhi High Court said in B.K. Khanna’s case, supra.
“10. Order 32, Rule 3 of the Code of Civil Procedure provides that where the defendant was a minor the Court on being satisfied with regard to the fact of his minority shall appoint a proper person to be guardian in suit for such minor. By virtue of the provisions of Rule 15, the provisions of Rules 1 to 14 of Order 32, relating to minors are made applicable, so far as may be, “to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on enquiry, by reasons of unsoundness of mind or mental infirmity to be incapable of protecting their interests when suing or being sued”. The provisions contained in Order 32 not only empower the Court to take appropriate steps where a party to the proceedings is a minor or a person who is incapable of protecting his interest whether by reason of unsoundness of mind or mental infirmity, but also cast a mandatory duty on the Court to take steps to ensure proper representation for such persons so as to ensure that their interest in relation to the proceedings are fully protected. These provisions are a legislative recognition of the well-known principle that the State, as indeed the Court, which is part of the judicial wing of the State is in locus parentis to its citizens, who are either minors or are incapable of protecting their interests in judicial proceedings by reasons of unsoundness of mind or mental infirmity. There can, therefore, be no doubt that before the Court proceeds with a suit or other proceedings, in which one of the parties is either a minor or otherwise incapable of protecting his interests, the Court is bound to hold a preliminary enquiry and, if satisfied that the conditions of the relevant rules are attracted, to make appropriate directions with regard to the proper representation of such persons. In such a case it would not be open to the Court to consider the suit or the other proceedings before complying with these mandatory requirements”.
If the State is the guardian of a minor or a mentally incapable person, and if he has a grievance to be redressed the plaint cannot be thrown out as indicated in Somnath’s case, supra, merely because, he is not properly represented by a guardian. It is the duty of the Court to appoint a Court guardian and examine his grievances. This power is conferred under Order 32, Rule 4(2). This paramount duty cannot be overridden by the Court invoking Rule 11 of Order 7. If we examine the proceeding in this case that is precisely that has happened in the present case. In the inquiry conducted on the application I.A. X, the Court found that the plaintiff is mentally unfit to prosecute the case himself without the aid
of a next friend; and that he be permitted to be represented by a next friend as indicated in the application. It found that, he has no interest adverse to that of the plaintiff. The defendant on appearance had earlier contested the claim and therefore a preliminary issue was struck in this behalf. That issue was tried and a finding has been entered and by the impugned order the Trial Court has only answered an issue in the suit. That finding on Issue No. 1 is only an interlocutory order. The impugned order is a finding on an issue. The correctness of the finding on an issue in the suit can always be challenged invoking Section 105(2) of the CPC while filing the appeal in the event ultimately the defendant suffers an adverse decree. This is what precisely happened in Syed Hassan Baffakki Thangal’s case, supra. This is clear from the following passage therein:
“3. The principle of law embodied in Order XXXII, Rule 15 has been elaborately discussed by a Division Bench of the Bombay High Court in Somnath’s case, supra, as well as by this Court in Balakrishnan’s case, supra. It is unnecessary now to discuss at length the ambit of the provisions except to say that it is a prerequisite of a suit sought to be filed by next friend that the Court should of its own motion conduct an enquiry in accordance with the provisions of Order XXXII, Rule 15 of the Code of Civil Procedure before accepting the plaint filed in the name of the idiot by next friend. It is only upon due satisfaction of the Court as contemplated by these provisions of the Code of Civil Procedure that the Court shall accept the plaint and issue notice to the defendants. Thereupon it is open to the defendants, if they wish, to challenge the plaint allegations regarding insanity, and, in that event, the Court would raise an issue specifically on the point and have it tried. In the present case the Court did not, in the first place, conduct an enquiry as contemplated under Order XXXII, Rule 15 of the Code of Civil Procedure. Secondly, despite the specific plea of the appellants that the alleged idiot was not an idiot, but only a dumb person, an issue was not raised by the Court. An issue ought to have been raised, tried and found”.
As such it is not necessary for this Court at this stage to examine propriety, correctness or regularity of the order. That right of the defendant need alone be reserved in this CRP.
8. Hence without prejudice to the right of the defendant to challenge the correctness of the finding of the Trial Court on the preliminary issue untrammelled by any observations of this Court in this proceeding the CRP is dismissed without costs.