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2000 DIGILAW 1287 (PAT)

Kalawati Devi @ Kalawati Kuar v. Madhuri Devi

2000-12-01

S.K.CHATTOPADHYAYA

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JUDGMENT S.K. CHATTOPADHYAYA, J:- This Second Appeal has been preferred by the defendants appellants challenging the concurrent findings of fact of the courts below. While admitting this appeal the following- substantial question of law was formulated: "Whether it was incumbent upon the court below the hold enquiry under Order 32 Rule 14 in view of pleading of the parties and whether the judgments and the decrees are bad in law on account of non-compliance of the said provision." 2. In spite of valid service of notice Respondent No.1 did not put her appearance and Respondent nos. 2 to 6 being minors are represented by D. R. Guardian. 3. The facts' of the case lie in narrow compass Most. Bhuneshwari Kuer and others filed title suit no. 229 of 1962 for declaration of right, title and interest over the suit property. Plaintiff no. 2 Babu Paras Nath Singh, is her son who has been represented by his mother as his guardian and well wisher on the ground that he is off his head. 4. The defendants in their written statement contesting the claim of the plaintiffs, inter alia, have specifically stated in paragraphs 5 that " the suit is bad for defect of parties. The plaintiff no. 2 is major and is of sound mind and the suit cannot proceed on his behalf and through his alleged guardian as alleged in para no.6 of the plaint. The allegations made contrary to it in the plaint para no. 6 are wrong and incorrect." Similarly, in paragraph 6 of the written statement it has been stated that “the plaintiff no. 2 has been wrongly described and shown to be under the guardianship of defendant no. 1 in the copy of the plaint served on these defendants and the same is being filed along with this W.S. These defendants submit that the defendant no.1 is never his guardian". 5. On this plea being taken issue no. 4 was framed to the effect that "is the suit bad for defect of parties ?" While discussing this issue the trial court merely has taken note of deposition of D.W.15, who has said in his chief that the plaintiff no.2 was of sound mind. 5. On this plea being taken issue no. 4 was framed to the effect that "is the suit bad for defect of parties ?" While discussing this issue the trial court merely has taken note of deposition of D.W.15, who has said in his chief that the plaintiff no.2 was of sound mind. However, in his cross examination this witness admitted that he had never talked with Paras Nath Singh, plaintiff no.2, and, a as such the trial court has refused to believe the statement of defendant witness no. 15 by observing that he was not competent to say that Paras Nath Singh was of sound mind. Accordingly, he gave finding that the suit was not bad for defect of parties. 6. As the suit was decreed, the defendants challenged the same in Title Appeal No. 66 of 1969/28 of 1983. During pendency of the appeal, they filed a petition under Order 41 Rule 27 of the Code of Civil petition for admitting the plaint and written statement of Partition suit no. 32 of 1967/27 of 1964 filed by Paras Nath Singh against Ragho Singh and Others as additional evidence in appeal. This prayer was rejected on 11.1.1974 against which the defendant moved the High Court in Civil Revision No.101 of 1974. This Court by order dated 11th September, 1979 disposed of the Civil Revision application observing as follows; "In my opinion the defendant is entitled to raise the applicability of Order 32 Rule 14 of the Code at the time of hearing of the appeal. In my opinion such point goes to the root of the filing of the suit. Hence in my opinion the impugned order will not cause any prejudice to the petitioner in raising the applicability of Order 32 Rule 15 of the Code. Hence in my opinion the defendant-Petitioner shall be entitled to raise the question of the applicability of Order 32 rule 15 of the Code at the time of hearing of the appeal. 7. From the aforesaid order it appears that this Court gave liberty to the appellants to raise the applicability of provision of Order 32 Rule 15 of the Code of the time of hearing at the appeal. 7. From the aforesaid order it appears that this Court gave liberty to the appellants to raise the applicability of provision of Order 32 Rule 15 of the Code of the time of hearing at the appeal. Such question being raised, the appellate court noticing some reported decisions took the view that as because the defendant earlier did not raise any objection to this and went on contesting the suit on merit he cannot have the right to raise the said point after losing the suit. 8. Mr. Anshu, learned counsel for the appellants, submits that this finding of the first appellant court is not only against the law propounded by this Court and other High Courts but it has committed an apparent error of record in holding that the appellants did not challenge the averment of the plaintiffs before the trial court. On going through the records I am of the view that the argument of Mr. Anshu is Justified. 9. As noticed above, in the written statement the appellants specifically have taken the point that the plaintiff no. 2 was not of unsound mind and he was capable of defending his interest before a court of law. The trial court disbelieved the statement of the defendant appellants merely on the ground that D.W. 15 stated in cross Examination that he had no personal talk with the plaintiff no. 2. The learned first appellate also missed this fact and has come to an erroneous conclusion that the defendants did not agitate this point before the trial court. 10. The first appellate court, in my view, has also committed an error of fact and law when it says that the defendants having lost before the trial court on merit were not entitle to raise the applicability of Order 32 rule 15 of the Code in appeal. The Court below Ought to have noticed the liberty given by this court in the aforesaid Civil Revision preferred by the defendant. By virtue of this order my view, the defendant was entitled to raise this legal point before the appellate court. 11. The principle laid down in Order 32 Rule 15 of the Code has been explained by the Division Bench of this Court in the case of Smt. Godawari Devi Vs. By virtue of this order my view, the defendant was entitled to raise this legal point before the appellate court. 11. The principle laid down in Order 32 Rule 15 of the Code has been explained by the Division Bench of this Court in the case of Smt. Godawari Devi Vs. Smt. Radha Pyari Devi and Ors.; AIR 1985 Patna 366 and their Lordships observed that “the issue of unsoundness of mind of the parties is primarily betwixt the court and the party and is certainly not a lis between the parties themselves. The legislature in its wisdom has conferred a larger and paternal power on the court to see that each party has capacity to safeguard its legal interest and is in 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". According to their Lordships, it is beneficial and paternal power wholly vested in the Court and it is in its discretion alone. Where it finds that anyone the parties is suffering from a weakness of mind, to proceed for taking step to safeguard the interest of such a party". The law, in my view, is settled that when on behalf of the plaintiff a suit is brought by his next friend on the allegation that the plaintiff, because of reasons of mental infirmity could not sue directly himself, in such a situation the issue of mental infirmity of the party is thus brought into the field on behalf of the party himself and, if contested, must be gone into. Reference, if any may be made to the decisions in the case of Rami Reddi Vs. Papi Reddl; AIR 1963 Andhra Pradesh 160 and Ramgobind Singh Vs. Sital Singh; AIR 1969 Andhra Pradesh 362. 12. In the instant case as noticed above the plaintiff no.1 has filed the suit on her behalf of her son, plaintiff no. 2, making an averment- that the plaintiff no. 2 being of unsound mind would not be able to safeguard his interest. This averment was categorically denied by the defendants in written statement. 12. In the instant case as noticed above the plaintiff no.1 has filed the suit on her behalf of her son, plaintiff no. 2, making an averment- that the plaintiff no. 2 being of unsound mind would not be able to safeguard his interest. This averment was categorically denied by the defendants in written statement. In these circumstances, in my view before admitting the plaint, the trial court was bound to follow the procedure as laid down in Order 32 rule 15 of the Code by holding an enquiry. More appropriate decision to this effect has been rendered by the Kerala High Court in the case of Syed Hassan Baffakki Thangal and others Vs. Kalliath Thazha Chirutha and others; A.I.R. 1988 Kerala 160, the facts of which are almost idential to the facts of the present case in which the plaint was filed by next friend in the name of a person described as an idiot by her sister claiming to be next friend. The defendant contended that the person described as an idiot was not an idiot but only a dumb person. Both the courts proceeded on the assumption that the defendants did not specifically dispute the claim of the next friend that the suit was being instituted in the name of a person who was an idiot, and so allowed the next friend to act as such. 13. The suit was decreed by both the courts. The defendant moved the High Court in appeal. In such circumstances, the Kerala High Court held that the court cannot accept plaint without conducting enquiry and raising an issued specifically and having it tried. The issue, according to the High Court, ought to have been raised, tried and found. The appeal was allowed by setting aside the decree of the courts below and the matter was remanded to the trial court to comply with the provisions or Order 32 Rule 15 of the Code. 14. In the facts and circumstances, in the present case also lam of the view that when this plea of insanity was raised by the plaintiff herself which was challenged by the defendant, the trial court before proceeding further ought to have held an enquiry for its satisfaction as to whether the plaintiff no.2 was really of unsound mind. 14. In the facts and circumstances, in the present case also lam of the view that when this plea of insanity was raised by the plaintiff herself which was challenged by the defendant, the trial court before proceeding further ought to have held an enquiry for its satisfaction as to whether the plaintiff no.2 was really of unsound mind. The first appellate court also erred in law in refusing the defendant-appellant to raise this point before it because the liberty was given by this Court to the defendant to raise this point. 15. In the result, this appeal is allowed. The judgment, and decrees of both the courts below are set aside. The case is remanded to the trial court to comply with the provisions of law as aforesaid and thereafter to proceed. 16. As the Respondents have not contested the suit, there will be no order as to cost.