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2006 DIGILAW 601 (ORI)

Adar Barad v. Nilakantha Mohanty

2006-08-11

L.MOHAPATRA

body2006
ORDER 11.8.2006 — This writ application is directed against the order dated 12.12.2005 passed by the learned Civil Judge (Junior Division), Khandapada in C.S. No.17 of 2003 rejecting the petition filed by the plaintiff-petitioner under Order 32, Rule 15 of the Code of Civil Procedure. 2. The suit had been filed through the next friend of the petitioner challenging the validity of execution of sale-deed bearing No.2140 dated 22.11.2002. It was the case of the next friend that the plaintiff-petitioner is a deaf, dumb and unmar¬ried lady and is also of unsound mind. During pendency of the suit an application under Order 32, Rule 15 of the C.P.C. was filed by the next friend stating therein that the plaintiff-petitioner has not been adjudged to be of unsound mind and she is unable to safeguard of her own interest in the suit. It is also alleged in the petition that the plaintiff has been kept away by the defendant and is not within the control of the next friend and therefore an enquiry is required to be made in that regard and the plaintiff is required to be examined in the Court. Objection was filed by the defendant-opposite party stating therein that earlier an application under Section 151 of C.P.C. was filed by the next friend for sending the matter to the Court of the Dis¬trict Judge, Puri to determine/adjudicate as to whether the plaintiff is of unsound mind or not and the said petition has been rejected. After rejection of the said petition, this appli¬cation under Order 32, Rule 15 C.P.C. has been filed for the self-same purpose. Learned Civil Judge in the impugned order rejected the application solely on the ground that on earlier occasion the same prayer had been turned down. 3. Learned counsel for the petitioner challenging the order submitted that unless a person is adjudged by the competent Court as of unsound mind before or during pendency of the suit, the Court itself on enquiry can also find out as to whether such person is incapable by reason of any mental infirmity in protect¬ing his/her interest when suing or being sued. It was further contended that the plaintiff has not been adjudged to be of unsound mind by the competent Court, under the Indian Lunacy Act and therefore the only course open is that the Court deciding in the suit has to make an enquiry as to whether the plaintiff is incapable by reason of any mental infirmity of protecting her interest in the suit. Learned counsel for the opposite party, on the other hand, submitted that the suit was presented by next friend on behalf of the plaintiff and she had been described as of unsound mind. It was therefore necessary to adjudge such a question at the very beginning and not during pendency of the suit. According to the learned counsel once a suit had proceeded to some extent, power under Order 32, Rule 15 of C.P.C. cannot be exercised and only course open is to declare the plaintiff of unsound mind by the competent Court under the Indian Lunacy Act. It was also contended that such an application filed earlier having been rejected by the trial Court, petition under Order 32, Rule 15 of C.P.C. was not maintainable. 4. Order 32, Rule 15 of the Code of Civil Procedure pro¬vides as follows : “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 incapable,by reason of any mental infirmity, of protecting their interest when suing or being sued.” This Court in the case Rukmani Bewa v. Radhika Parida & others, reported in Vol.73 (1992) CLT 226 while dealing with the aforesaid provision held as follows : “Any person can file a suit on behalf of a lunatic as a next friend. However, when challenged, an enquiry is to be made about the mental capacity of the person alleged to be lunatic to find that by reason of mental infirmity, he would not be able to protect his interest when suing. In such enquiry next friend attributing lunacy to the plaintiff is to prove the same. However, when challenged, an enquiry is to be made about the mental capacity of the person alleged to be lunatic to find that by reason of mental infirmity, he would not be able to protect his interest when suing. In such enquiry next friend attributing lunacy to the plaintiff is to prove the same. Where a forum has been created under a Statute to adjudicate the dispute relating to lunacy, Court would do well to direct parties to get the question adjudicated and shall grant time to initiate the proceeding. Where, however, arrest of the progress of the suit is likely the very object of filing the same, it may proceed with the enquiry as envisaged under Order 32, Rule 15 C.P.C. In case this case is not taken, litigation may be instituted by undeserv¬ing persons in name of another by describing the same person to be of unsound mind to drag the defendants to a litigation to their detriment. A Court where a suit is filed should take ade¬quate care for exercising the discretion.” A Division Bench of the Patna High Court while dealing with the said provision in the case of Smt. Godawari Devi v. Smt. Radha Pyari Devi and others, reported in AIR 1985 Patna 366 in para 6 of the judgment held as follows : “It is common ground that herein we are not dealing with the category of persons adjudged to be of unsound mind. That differ¬ent considerations would be attracted in their case is patent and therefore, this category may, for all purposes, be left altogeth¬er apart. Adverting now to the second category, it seems plaint that the issue of unsoundness of mind of the parties in this case is primarily betwixt the Court and the party and is certainly not a lis betwixt the parties themselves. The legislature in its wisdom has conferred a larger and paternal power on the Court to see that each party has the capacity to safeguard its legal interest and is no way handicapped by reason of any mental in¬firmity. It is equally significant to notice that this broad-based power extends in case of any mental infirmity and is not necessarily governed by the extreme situation of a person being of unsound mind altogether. It is equally significant to notice that this broad-based power extends in case of any mental infirmity and is not necessarily governed by the extreme situation of a person being of unsound mind altogether. To my mind, this beneficial and indeed, paternal power is wholly vested in the Court and it is in its discretion alone, where it finds that any one of the parties is suffering from a weakness of mind, to proceed for taking steps to safeguard the interest of such a party. To use the language of another jurisdiction, namely, that of contempt, the lis herein is betwixt the Court and such a party and not betwixt the opposite parties as such. As has been said in that jurisdiction, the issue of contempt is primarily between the Court and the contemnor, and even more so under O.32, R.15 in its sound category, it is a matter entirely between the Court and the party alone and nobody else has any vested interest or right to agitate the unsoundness of mind of his opponent in this case. To put it tersely, it is not at issue betwixt the parties and neither the plaintiff nor the defendant has the locus standi to challenge or question the soundness of mind of the opposite side and claim an adjudication thereon at the very threshold. If this were to be so permitted in this field, there would perhaps be no end to allegations and counter allegations in this regard and its misuse would be capa¬ble of working grave public mischief.” A similar view as that of the Patna High Court was also taken in the case of Somnath v. Tripanna Ramchandra Jannu, re¬ported in AIR 1973 Bombay 276. On analysis of the aforesaid decisions, it is clear that the Court while deciding the suit has also ample jurisdiction to conduct an enquiry to find out as to whether the party to the suit is incapable by reason of any mental infirmity for protec¬tion of his/her interest in the suit. Merely because an application under Section 151 C.P.C. filed for the purpose of getting the issue adjudged by the competent Court had been rejected will not be a ground to throw away the petition filed under Order 32, Rule 15 C.P.C. The authority under the Indian Lunacy Act is different than that of the Court which is deciding the suit in the present case. I am, therefore, of the view that the learned Civil Judge failed to exercise jurisdiction vested in him by holding that in an earlier application the same prayer was turned down. In the earlier application a prayer was made only to send the records to the District Judge, Puri for adjudicating the issue under the Indian Lunacy Act and not under the C.P.C. I am, therefore, of the view that the petition is required to be reconsidered by the learned Civil Judge. 5. I, accordingly, set aside the impugned order and direct the learned Civil Judge to hear the petition filed under Order 32, Rule 15, C.P.C. afresh and dispose of the same keeping in mind what has been decided by this Court and the other Courts, judgments whereof are referred to in the earlier paragraphs of the judgment. The writ application is disposed of accordingly. Urgent certified copy of the order be granted on proper application. Application disposed of.