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2011 DIGILAW 1960 (PNJ)

Jasbir Singh v. Sukhwinder Singh

2011-11-02

VIJENDER SINGH MALIK

body2011
JUDGMENT VIJENDER SINGH MALIK, J. - This is a revision petition brought by the petitioner, who is next friend of Smt. Narinder Kaur under the provisions of Article 227 of the Constitution of India for setting aside the order dated 05.10.2011 passed by learned Additional Civil Judge (Senior Division), Amritsar, vide which considering the application of the defendants-respondents filed under Order 32 Rule 15 CPC, the course of the trial has been changed and Smt. Narinder Kumar, the next friend of the plaintiff has been directed to produce Jasbir Singh in the court on 05.11.2011. 2. The suit for declaration to the effect that the plaintiff is owner/co-sharer in joint possession with defendants no. 3 to 5 of land measuring 35 kanals 4 marlas situated in the revenue estate of village Rakh Manawala, Tehsil and District Amritsar has also challenged the sale deeds which are in favour of defendants no.1 and 2. The plaintiff Jasbir Singh has been claimed to be a person of unsound mind and for that reason, the suit has been brought by Jasbir Singh through Smt. Narinder Kaur, his wife as his next friend. Under the provisions of Order 32 Rule 15 CPC, it has been laid down that Rules 1 to 14(except Rule 2-A) relating to minors 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 inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued. 3. On 23.09.2010, learned counsel for the plaintiff had made a statement before learned Additional Civil Judge (Senior Division), Amritsar that he did not press his applications under Order 32 CPC and Order 39 Rules 1 and 2 CPC at that stage. Learned trial court then observed that the fact regarding unsoundness of the mind of the plaintiff shall be established by evidence of the plaintiff. Noticing that compromise was not effected between the parties, learned trial court framed the issues and fixed the case for 15.02.2011 for evidence of the plaintiff. Learned trial court then observed that the fact regarding unsoundness of the mind of the plaintiff shall be established by evidence of the plaintiff. Noticing that compromise was not effected between the parties, learned trial court framed the issues and fixed the case for 15.02.2011 for evidence of the plaintiff. In the absence of the intervening orders, I take notice of order dated 12.09.2011 whereby the court has noticed the absence of Jasbir Singh in the proceedings and has further noticed that learned counsel for the plaintiff has filed a certificate issued by the doctor. In those circumstances, learned trial court fixed the case for evidence of the plaintiff on 05.10.2011 and directed the plaintiff to appear for his cross-examination. 4. It is nowhere the case that the plaintiff has appeared in the witness box or that his examination-in-chief was recorded. What is evident is that the next friend of the plaintiff appeared in the witness box and tendered her affidavit for her examination-in-chief. On 05.10.2011 the next friend of the plaintiff Smt. Narinder Kaur alongwith one Dr. Ajay Sharma was present in the court. At that time, learned counsel for the defendants pressed for decision of the application under Order 32 Rule 15 CPC. 5. Hearing arguments on the point, learned trial court has observed that the court must make an inquiry into the fact regarding the mental state of Jasbir Singh, the husband of Smt. Narinder Kaur, who has filed this suit. Therefore, in order to ascertain the mental condition of Jasbir Singh, Smt. Narinder Kaur was directed to produce Jasbir Singh in the court on 05.11.2011. 6. Aggrieved by the said order, the present revision petition has been filed by the petitioner. 7. I have heard Shri S.K. Garg Narwana, learned counsel for the petitioner and have gone through the record. 8. Learned counsel for the petitioner has submitted that the learned trial court was not justified in changing the course of the suit after fixing it for evidence of the plaintiff after observing that the factum of unsoundness of the mind of the plaintiff would be established by way of his evidence. According to him, the plaintiff is in USA for treatment, which is a fact evident from the certificate (Annexure P-4) of the doctor, where he is taking treatment for his mental condition. According to him, the plaintiff is in USA for treatment, which is a fact evident from the certificate (Annexure P-4) of the doctor, where he is taking treatment for his mental condition. He has submitted that as per the certificate, the plaintiff is unable to travel. He has submitted that Smt. Narinder Kaur, who had also gone with Jasbir Singh to USA for his treatment, has returned because the court had fixed the case for plaintiff's evidence and has even tendered her affidavit for her examination-in-chief. According to him, instead of asking the defendants to cross-examine her and recording statement of Dr. Ajay Sharma, learned trial court has directed production of Jasbir Singh in the court. He has submitted that Smt. Narinder Kaur has to return to USA to join her husband, who is under treatment there and that she would produce him after he becomes capable of travelling. According to him, if she would fail in doing so, the suit of the plaintiff may be dismissed. He has submitted that the other party would not be prejudiced if the evidence of Smt. Narinder Kaur and Dr. Ajay Sharma is recorded before production of Jasbir Singh. 9. It is true that instead of conducting inquiry into unsoundness of mind of Jasbir Singh, learned trial court proceeded to fix the case for evidence of the plaintiff and was of the view that the unsoundness of the mind of Jasbir Singh would also be established by the plaintiff in his evidence. However, the inquiry as referred to under Order 32 Rule 15 CPC is required to be conducted before the trial commenced. The trial in this suit brought by Jasbir Singh through his next friend on the plea of unsoundness mind can proceed only if the plaintiff has already been adjudged as a person of unsound man or the court gives a finding in this regard in an inquiry. The court cannot be held precluded from asking the presence of the plaintiff for the purpose of inquiry envisaged under Order 32 Rule 15 CPC. 10. The court cannot be held precluded from asking the presence of the plaintiff for the purpose of inquiry envisaged under Order 32 Rule 15 CPC. 10. The submissions of learned counsel for the petitioner that Smt. Narinder Kaur has come to India for evidence and that she would have to go back to join her husband and would bring her husband when he becomes capable of travelling, fail to show the order of learned trial court asking for production of Jasbir Singh to be bad. The evidence which Smt. Narinder Kaur wants to lead now can be led after the appearance of Jasbir Singh before the court for inquiry into the unsoundness of the mind of the plaintiff. I do not find even any great hardship to be caused to Smt. Narinder Kaur on being asked by the court to produce Jasbir Singh and by not recording the statement of Smt. Narinder Kaur and Dr. Ajay Sharma. 11. In these circumstances, I find no material to interfere with the order of learned trial court. The revision petition, therefore, has no merit and is dismissed. Petition dismissed.