O R D E R The plaintiff in O.S.No.343 of 1998 on the file of the Court of the Chief Judge. City Civil court. Hyderabad filed this Civil Revision Petition aggrieved by the order dated 4.2.2000 in I.A.No.3653 of 1998 appointing Court guardian to represent the 6th defendant in the suit. 2. The brief facts of the case are as follows: The revision petitioner filed O.S.No-343 of 1998 seeking a decree for partition and separate possession of the suit schedule property. The defendant No.l in the suit. who is the 1st respondent herein, is the mother of the plaintiff and the defendant No.6 is the younger brother of the plaintiff. Pending the suit the defendants filed I.A No.3653 of 1998 under Order 32. Rule 3 of CPC seeking to appoint the first defendant as guardian for the 6th defendant. The Ist defendant- mother sworn to the affidavit stating that the defendant No.6 is insane and that though the plaintiff is fully aware of the said fact. he failed to take any steps for appointment of guardian for the 6th defendant. She also stated that the defendant No.6 is in her care and custody and that she has no adverse interest against the 6th defendant and accordingly sought to appoint her as the guardian of the 6th defendant in O.S.No-343 of 1998. The plaintiff-petitioner herein filed a counter stating that the 6th defendant is not insane, but he is only deaf and dumb. He also alleged that the Ist defendant has colluded with her daughter and she will not protect the interest of the 6th defendant and therefore, pleaded to dismiss the application. 3. The court below by order dated 4.2.2000 appointed Sri V. Prataprao, Advocate as guardian to represent the 6th defendant in O.S.No.343 of 1998. Aggrieved by the said order the plaintiff filed the Present Civil Revision Petition. 4. Heard the learned counsel for the petitioner as well as the respondents. 5. The learned counsel for the petitioner submits that Order 32. Rule 15 of Civil Procedure Code empowers the court to appoint a proper person to be the guardian for persons of unsound mind but before appointing the guardian it is mandatory for the court to make necessary enquiry and record a finding that the person is incapable of protecting his interest by reason of his mental infirmity. In the instant case. In the instant case. since the court below has not conducted any such enquiry, the learned counsel contends that the impugned order is in violation of the mandatory requirement under Rule 15 of Order 32 CPC and therefore liable to be set aside. The learned counsel for the petitioner further contends that Rule 15 of Order 32 CPC enables appointment of guardian only in respect of a person of ‘unsound mind’ and in the instant case the 6th defendant being only deaf and dumb, the court below has erred in exercising the power under Rule 15 of Order 32 of CPC and appointing a guardian for the 6th defendant. 6. On the other hand, the learned counsel for the respondents submits that the plaintiff in his counter though denied the fact that the 6th defendant is insane, he himself admitted that he is deaf and dumb and he also did not dispute the fact that the 6th defendant is incapable of protecting his interest. Therefore, he contends that no further adjudication is necessary and the order under revision cannot be said to be in violation of the provisions under Order 32, Rule 15 of CPC. He further contends that a person who is incapable of either to speakor to hear can certainly be treated as a person who is incapable of protecting his interest, and therefore, the Court below has rightly appointed a guardian for the 6th defendant in exercise of powers under Rule 15 of Order 32 of CPC and the same does not warrant any interference by this Court. 7. For appreciating the contentions of the respective parties, it is necessary to examine the relevant provisions under Order 32 of Civil Procedure Code, which deals with suits by or against minors and persons of unsound mind. Order XXXII (Suits By or Against Minors and Persons of Unsound Mind) 1. Minor to sue by next friend: Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Explanation:- …. …. 3. Guardian for the suit to be appointed by Court for minor defendant- (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. Explanation:- …. …. 3. Guardian for the suit to be appointed by Court for minor defendant- (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice (..) to any guardian of the minor appointed or declared by an authority competent in that behalf, or. where there is no such guardian, (upon notice to the father, or where there is no father, to the mother, or where there is no father or mother; to other natural guardian) of the minor, or, where there is (no father, mother, or other natural guardian), to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule (4-A).......... (5)................. 4. Who may act as next friend or be appointed guardian for the suit: (1 ) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit. (2) Where minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be. (3) No person shall without his consent (in writing) be appointed guardian for the suit. (3) No person shall without his consent (in writing) be appointed guardian for the suit. (4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of is officers to be such guardian and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested, (or out of the property of the minor) and may give directions for the payment or allowance of such costs as justice and the circumstances of the case may require. ….. …… 15. Rules 1 to 14 (except rule 2-A) to apply to persons of unsound mind. - Rules 1 to 14 (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 incapabte. by reason of any mental infirmity, of protecting their interest when suing or being sued.) 8. On a plain reading of the provisions under Order 32 CPC, it can be seen that the whole object of Order 32 is to see that the interest of minors and persons of unsound mind does not suffer and that they are properly represented in a suit or proceeding by or against them. Rule 3. which specifically deals with appointment of a guardian for minor defendant, requires that before appointing the guardian the court should be satisfied as to the fact of minority of the minor defendant. Further under Rule 3 the Court while appointing guardian is bound to satisfy itself that the proposed guardian is a fit and proper person and has no adverse interest to that of the minor. Rule 4 deals with the question as to who can be appointed as guardian and sub-rule (3) of Rule 4 specifically states that no person shall without his consent be appointed as guardian. As per sub-rule (4) an officer of the court can be appointed only when there is no other person fit and willing to act as guardian. 9. Rule 4 deals with the question as to who can be appointed as guardian and sub-rule (3) of Rule 4 specifically states that no person shall without his consent be appointed as guardian. As per sub-rule (4) an officer of the court can be appointed only when there is no other person fit and willing to act as guardian. 9. So far as the persons of unsound mind are concerned, it can be seen that under Rule 15 they are placed on the same footing as minors and the provisions contained in Rules 1 to 14 of Order 32 with regard to the, proceedings by or against minors are extended to the proceeding by or against persons of unsound mind. 10. Thus a suit on behalf of a person of unsound mind has to be filed by a next friend under Rule 1 and where the defendant is of unsound mind a guardian has to be appointed by the Court as provided under Rule 3. it is pertinent to note that Rule 15 covers not only the persons adjudged to be of unsound mind, but also persons who are found by the Court to be incapable of protecting their interest by reason of any mental infirmity. The Rule postulates an enquiry by the court for the purpose of finding out whether the person concerned is incapable of protecting his interest in the suit by reason of any mental infirmity. 11. It is apparent from Rule 15 that if a person is already adjudged to be of unsound mind, it. is open for the court to dispense with the enquiry and to appoint a guardian in accordance with the Rules 1 to 14. However, where the person is not so adjudged, it is mandatory for the court, before appointing a guardian, to conduct an enquiry into the alleged mental infirmity and record a finding that he is incapable of protecting his interest in the suit by reason of such mental infirmity. Thus, it is clear that under Rule 15, a guardian cannot be appointed as a matter of course. Thus, it is clear that under Rule 15, a guardian cannot be appointed as a matter of course. The Court cannot accept the allegation of insanity or mental infirmity on the mere assertion made, but it is essential for the Court to conduct the necessary ‘ enquiry and a guardian can be appointed only on being satisfied that the person is incapable of protecting his interest in the suit by reason of any mental infirmity. 12. Similar question arose for consideration in RAMI REDDI VS PAPI REDDI (1) in which the scope of Rule 15 of Order 32 CPC has been considered in detail and the following principles have been laid down. “ (1) Order XXXII, R. 15 C.P.C places persons or unsound mind or persons so adjudged in the same position as minors for purposes ofRr.1to14. (2) Order XXXII R. 15 C.P.C. applies not only to a person adjudged to be of unsound mind, as under the old Code. but also to a person of weak mind. (3) Where it is alleged that a party to a suit is of unsound mind. and the other party denies it, the court must hold a Judicial inquiry, and come to a definite conclusion, as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interests in the suit. (4) Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others. (5) Whether a person is of unsound mind or mentally infirm for the purpose of the rule and the extent of the infirmity has to be found by the Court on inquiry. (6) Where the question of unsoundness of mind arises not only under O.XXXII, R.15 C.P.C. but is also one of the issues in the suit, the Court has ample, jurisdiction to enquire into that question and for that purpose seek medical opinion. (7) The enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers and as Courts are generally presided over by lay-men as a matter of precaution, the evidence of medical expert should be taken. (7) The enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers and as Courts are generally presided over by lay-men as a matter of precaution, the evidence of medical expert should be taken. (8) Of course, the opinion, of a doctor, as is the opinion of any other expert, under Sec.45 of the Evidence Act, is only a relevant piece of evidence. (9) The Court may also compel the attendance of the alleged lunatic before it, and to submit himself for medical examination. If the alleged lunatic is in custody, the Court may direct the next friend or any other person having custody to produce him before the medical expert for examination. (10) Where the precaution of Judicial enquirv is not observed the person cannot be declared lunatic, and a guardian cannot be appointed for him. (11) When a person is adjudged a lunatic irregularity and improperly, and notice was not served on him and a guardian alone was allowed to appear and defend the suit and decree was passed owing to the guardian not putting up a proper defence the alleged lunatic can treat the decree against him as an ex parte decree, and have it set aside under 0. IX R 13 C.PC. 13. Again in PAPI REDDI Vs. RAMI REDDI (2), it has been held as follows: “...Rule 15 of Order XXXII however is explicit when it says that Rules 1 to 14 shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court in inquiry, by reasons of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. Rule 15 thus postulates an inquiry, if the unsoundness of the mind of the plaintiff and the fact that he was incapable of protecting his interests are disputed by the defendants.” 14. In S. KRISHNAMURTHY VS.. S. SASILA (3), a Division Bench of this court while holding that under Rule 15 the Court has to conduct an enquiry, made the following observations, regarding the method of enquiry contemplated under Rule 15. In S. KRISHNAMURTHY VS.. S. SASILA (3), a Division Bench of this court while holding that under Rule 15 the Court has to conduct an enquiry, made the following observations, regarding the method of enquiry contemplated under Rule 15. “A plain reading of this Rule leaves no doubt that the court has to conduct an enquiry before permitting the next friend to institute the suit. But the method and manner in which the enquiry has to be conducted is not indicated in the Rule. In the present case, the suit was filed on 3.7.1974. The application under O.XXXII, R.15 was supported by the affidavit of the next friend wherein it was stated that the Ist plaintiff was of unsound mind. The record discloses that affidavits of three other persons belonging to the same village were also filed along with the petition. The learned District Munsif directed the suit to be registered on 6.7.1974. The order also shows that the counsel was heard. Apparently, the trial Court was satisfied with the material before it that the Ist plaintiff was of unsound mind. Otherwise, it would not have directed the suit to be registered. In the absence of any express provision in the Rule as to the nature of the enquiry that should be conducted, it is not possible to say that the procedure adopted by the trial Court is not in conformity with the Rule. All that the said Rule contemplates is that the Court should be prima facie satisfied that the plaintiff is of unsound mind. If the Court is not satisfied with the averments in the petition; it may call upon the party to examine witnesses in support of the allegations. Even on the basis of affidavits, the Court can form an opinion and come to the conclusion that it is a fit case for permitting the next friend to institute the suit. Once such an order is passed, it is open to the defendant to apply to the Court by way of an independent application for revocation of that order.” 15. In the above decision the Division Bench was considering a case where the suit was filed by the next friend and guardian of the Ist plaintiff seeking a declaration that a sale deed executed by the 1st plaintiff, who is a person of unsound mind, is null and void. In the above decision the Division Bench was considering a case where the suit was filed by the next friend and guardian of the Ist plaintiff seeking a declaration that a sale deed executed by the 1st plaintiff, who is a person of unsound mind, is null and void. Along with the plaint, the wife of the 1st plaintiff filed an application under Order 32, Rule 15 CPC to appoint her as next friend and guardian. The petition was supported by an affidavit stating that her husband was of unsound mind and is incapable of protecting his interest. Further affidavits of three persons belonging to the same village were also filed along with the said petition. On the basis of the said material, the suit was registered by the trial Court and notice was ordered to the defendants. However, by the time the said application came up for orders, the Ist plaintiff died and accordingly the application was dismissed as infructuous. The wife and minor son of the Ist plaintiff were brought on record as his legal representatives and the trial Court proceeded with the suit and on consideration of the evidence of either side, the suit was dismissed on merits. However, on appeal filed by the 2nd plaintiff, the appellate Court reversed the decision of the trial Court and decreed the suit. Against that, the defendants preferred second appeal wherein it has been contended that the suit itself is not maintainable since no enquiry was conducted as contemplated under Rule 15 of Order 32 CPC before allowing the suit to be instituted by the next friend of the Ist plaintiff. 16. In the aforesaid set of facts, the Division Bench . while observing that the trial Court was satisfied with the material placed before it that the 1st plaintiff was of unsound mind. held that it cannot be said that the procedure adopted by the trial Court is not in conformity with Rule 15. The Division Bench also observed that once such an order is passed it is open to the defendants to apply to the court by way of an independent application for revocation of that order. 17. The observations made by the Division Bench in the said case are not attracted to the facts and circumstances of the present case. In the instant case the application under Order 32. 17. The observations made by the Division Bench in the said case are not attracted to the facts and circumstances of the present case. In the instant case the application under Order 32. Rule 15 of CPC was made by the defendants to appoint the Ist defendant as guardian for the 6th defendant on the ground that he is insane. The plaintiff opposed the same and denied the plea that the 6th defendant is insane. However he alleged that in his counter affidavit that the 6th defendant is deaf and dumb. Thus there are two different versions as to the condition of the 6th defendant, which require adjudication after conducting the necessary enquiry. Despite the disputed question of fact, the Court below without assigning any reasons passed a cryptic Order appointing an Advocate as the Court guardian for the 6th defendant, which is assailed in the present Revision Petition. It is necessary to extract the said order, which runs as follows: “Petitioner prayer may be appointed as court guardian Sri V.Pratap Rao, Advocate is appointed. His fees is fixed Rs.1,000/- tentatively. For report 3.3.2000”. 18. It can be seen that none of the parties adduced any evidence before the Court below in support of their respective pleas. Apparently except the affidavit of the Ist defendant in which 6th defendant is described as insane and the counter affidavit filed by the plaintiff in which the disputed the allegation of insanity and claimed that the 6th defendant is deaf and dumb, no other material is placed before the Court below. Curiously the Court below without recording any finding on the disputed fact, namely whether the 6th defendant is insane or deaf and dumb, and without recording its satisfaction that the 6th defendant is incapable of protecting his interest by reason of any mental infirmity, appointed a Court guardian. I am of the opinion that the order under revision is liable to be declared as illegal for more than one reason. 19. In view of the fact that the 6th defendant was not already adjudged as a person of unsound mind and particularly since the plaintiff disputed the pica of the defendants that the 6th defendant is insane, the court is bound to conduct an enquiry and is bound to record a finding as to the status of the 6th defendant and that whether he is insane or deaf and dumb. in the event of the court finding the 6th defendant to be of unsound mind, as pleaded by the defendants, it is the further duty of the Court to record its satisfaction that by reason of such mental infirmity the 6th defendant is incapable of protecting his interest. 20. Further, the Court below failed to see that a person who is alleged to be deaf and dumb cannot be taken for granted as one who should be represented by a guardian in terms of Rule 15. It is true that a deaf and dumb is incapable of conveying his ideas as effectively as a normal person does, but there is absolutely no basis to equate him to a person suffering from mental infirmity. In such a case it is the duty of the court to conduct necessary enquiry and to find out whether his mental faculty is impaired due to the disability suffered by him. The provisions of Rule 15 will be attracted only where the Court on such enquiry is satisfied that his inability to hear or speak affected his mental faculty thereby rendering him incapable of protecting his interest. If the Court comes to a conclusion that even if he cannot be understood by ordinary persons, his mental faculty is not imparied and that he is mentally alert and capable of protecting his interest, the Court may refuse to appoint a guardian. Therefore, in my considered opinion, it is not open for the Court to extend the provisions of Rule 15 of Order 32 CPC to a deaf and dumb automatically, but it can be done only after such disability impaired the mental faculty and being satisfied that/the party in a given case is not capable of protecting his interest. 21. For the aforesaid reasons I am unable to accept the contentions of the learned counsel for the respondent that the Court below is justified In appointing a Court guardian for the 6th defendant on the basis of the admission made by the plaintiff that the 6th defendant is deaf and dumb. 22. The learned counsel for the respondent relied upon a decision of this Court reported in RAVIPUDI VENKA-TASWARLU & OTHERS VS. RAVIPUDI SUBRAHMANYAM(4). The issue raised in the said case is entirely different and the ratio laid down therein is not of any assistance to the case of the respondent. 23. 22. The learned counsel for the respondent relied upon a decision of this Court reported in RAVIPUDI VENKA-TASWARLU & OTHERS VS. RAVIPUDI SUBRAHMANYAM(4). The issue raised in the said case is entirely different and the ratio laid down therein is not of any assistance to the case of the respondent. 23. That apart the order under revision in appointing an Advocate as Court guardian without recording any reasons is not in conformity with the provisions of Rule 4 (4) of Order 32 CPC. it is relevant to note that an ordinary person may not be able to communicate with a deaf and dumb. Naturally only a few persons who are closely associated with him will be in a position to communicate with the persons of deaf and dumb by means of signs and gestures. Therefore, the order under revision appointing an Advocate as the Court guardian without making any enquiry whether such person will be in a position either to understand the mind of the 6th defendant or to convey to him the implications of the suit proceedings appears to be mere non-application of mind to the facts and circumstances of the case. The Court below also failed to take into consideration that an Officer of the Court can be appointed as a guardian only where there is no other person fit and willing to act as a Court guardian. 24. Thus, viewed from any angle, the order under revision is not in conformity with the mandatory requirements under Rule 15 of Order 32 CPC. Hence it has to be concluded that the Court below by merely accepting the allegations and appointing a guardian without conducting any enquiry, failed to exercise jurisdiction vested under law, and therefore, the order under revision cannot be sustained. 25. I am of the view that in the facts and circumstances of the present case it is the duty of the Court to conduct enquiry by examining the 6th defendant in person, if necessary by taking the assistance of medical expert, and to arrive at a definite conclusion whether the 6th defendant suffers from any mental infirmity or whether he is deaf and dumb which also affected his mental faculty and record a finding whether he is capable of protecting his interest in the suit. On such enquiry, if the court is satisfied that the 6th defendant is not capable of protecting his interest in the suit, it is open to appoint a proper guardian in compliance with the provisions under Order 32 of CPC. 26. For the reasons stated supra the order under Revision is set aside and the Court below is directed to consider the matter afresh and to pass appropriate orders in I.A.No.3653 of 1998 after conducting due enquiry as indicated above and after giving due opportunity to both the parties to adduce necessary evidence. 27. The Civil Revision Petition is accordingly allowed. No costs. --X—