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1998 DIGILAW 1063 (MAD)

A. Rajamanickam v. Suseela

1998-08-10

V.KANAGARAJ

body1998
Judgment :- 1. The above revision is directed against the fair and decretal order dated 30.6.1997 made in I.A.No.16 of 1997 in O.S.No.248 of 1996 by the Court of District Munsif, Virudhunagar, thereby dismissing the application filed by the petitioner/proposed defendant as third party under O.32, Rules 2 and 3 and Sec. 151 of the Code of Civil Procedure, thereby praying to implead him as a necessary party to the suit. 2. A perusal of the affidavit filed in support of the petition by the petitioner would reveal that his son is of unsound mind whose interests are intermingled in the subject matter of the suit and to safeguard the interest of the son of unsound-mind who is claimed to be having some right or interest in the property concerned hence the father has filed the above application as the natural guardian and next friend of the proposed third defendant. 3. The respondent would file his counter contending that the status of the unsoundness of mind of the son of the deceased Sakunthala without being proved and further the fact that the said Ramesh is of unsound-mind and not in a disposing state of mind should also be proved and that since the representative of the minor herein viz., Rajamanickam is alleged to be the husband of the deceased Thillaiammal and he has not in any manner proved that he is the legal heir of the deceased Thillaiammal and hence he has no locus standi to file this application at all. 4. The lower court without considering any of the above averments found in the petition and the counter as well and without discussing anything regarding the application filed by the petitioner seeking to represent his son of unsound mind stating in one sentence that the lower court has no jurisdiction to decide the said application as per the provisions to Sec.54 of the Mental Health Act, has bluntly dismissed the application without assigning any reason whatever on the pleadings on the facts and circumstances encircling the case. 5. 5. Though the lower court may not be competent to decide the question of the unsoundness of the mind of the son of the proposed defendant under Sec.54 of the Mental Health Act, the suit in which the petitioner is a necessary party according to him, his rights and interests are at stake is pending only before the lower court and not elsewhere and the remedy for the petitioner lies only in the said suit and not anywhere else much less under the Mental Health Act as it has been pointed out by the lower court. 6. Coming to Sec.54 of the Mental Health Act, 1987, whereunder according to the order passed by the court below it has no jurisdiction to enquire into an application of the sort that the petitioner filed before it. On a perusal of the section, nowhere it has been contemplated therein that the civil court has no jurisdiction to decide an application filed under O.32, Rules 2 and 3 and Sec. 151 of the C.P.C. Sec.54 of the Mental Health Act deals with appointment of Manager for management of property of mentally ill person. A cursory glance of the said section would not anywhere indicate matters that are concerned with the court proceedings in which a proposed defendant seeking to appoint him as the guardian to represent the case of the proposed mentally unsound respondent, since on the death of a person the petitioner alleging that he is the legal heir of the deceased defendant thereby seeking to implead him as a party and since the person sought to be impleaded being a person of unsound-mind his father as next friend seeking to appoint him as the guardian has absolutely nothing to do with Sec.54 of the Mental Health Act, 1987. 7. Moreover, the lower court has not bothered about considering all the points pleaded by either party or even Sec.54 of the Mental Health Act, 1987, regarding the applicability of the same in the situations and circumstances that are prevalent in the case. 8. Sec.54 of the Mental Health Act, deals with the management of the property of mentally ill persons and not a mentally ill person being represented to defend a suit and there is no nexus between the section and the pleading and prayer of the petition filed by the petitioner before the lower court. 9. 8. Sec.54 of the Mental Health Act, deals with the management of the property of mentally ill persons and not a mentally ill person being represented to defend a suit and there is no nexus between the section and the pleading and prayer of the petition filed by the petitioner before the lower court. 9. Further more, it is brought to the notice of the lower court that “the appointment by the civil court of a manager of a lunatics property is valid, until the court of Wards avails itself of its power of assuming the management of the estate’ (1912)15 I.C. 265(266) (D.B.).” In the light of the above judgment and further the removal procedure i.e., contemplated under Sec.69 of the said Act, would only mean that so long as the court of awards is appointed representation offered on the part of N.F. is proper and acceptable. Moreover, it is only the property appointing manager to manage the properties of mentally ill person, the section becomes relevant and not defending a suit in the civil court, wherein the right to property has not at all accrued in favour of the mentally unsound person and in case the mentally unsound person succeeds, then the question of the provision of Mental Health Act coming into being will arise. It is not for the appointment of any manager of a mentally unsound persons estate the above application had been filed. 10. On the contrary, under O.32 dealing with “suits by or against minors and persons of unsound mind”. In Rule 3, it has been clearly spelt out that the court dealing with the subject matter is competent to appoint the guardian. Hence guided by the very sections under which the application has been made and in full consideration of the facts and circumstances and the evidence placed before the lower court, the subject matter should have been decided. The manner in which the lower court has casually dealt with the petition in passing the order is nothing short of shirking its responsibility and such of the attitude of the lower court is quite unbecoming for a judicial officer of her stature. 11. The manner in which the lower court has casually dealt with the petition in passing the order is nothing short of shirking its responsibility and such of the attitude of the lower court is quite unbecoming for a judicial officer of her stature. 11. The above matter, in the circumstances, is remanded to the lower court for proper consideration of the facts and circumstances of the case and to decide the same in the light of the provision of law under which the application has been filed without making unnecessary involvement of the unconnected provisions of law and to pass a fitting order with further opportunity for the parties to be heard. 12. In result, the above civil revision petition is allowed setting aside the fair and decretal order dated 30.6.1997 made in I.A.No. 16 of 1997 in O.S.No.248 of 1996 by the Court of District Munsif, Virudhunagar. No costs. However, in the circumstances of the case, the above matter is remanded for fresh enquiry and orders.