JUDGMENT 1. - Since the learned members of the Bar are abstaining from work, Smt. Sunita, the petitioner has appeared before this Court to argue the case. 2. The petitioner has challenged the order dated 5.7.2013 passed by the learned Addl. Civil Judge (SD) No.1, Bharatpur, whereby the learned Magistrate has dismissed an application filed under Section 10 CPC by the petitioner. 3. Smt. Sunita has pleaded that initially one Atar Singh, the respondent No.2 had filed a suit against her for permanent injunction. However, subsequently he filed an application before the learned trial court claiming that since he is mentally challenged, he is unable to pursue the civil suit. Therefore, he may be permitted to withdraw the civil suit. The said application was accepted and by order dated 10.4.2009, the civil suit was dismissed as withdrawn. But subsequently he moved an another civil suit through next friend against the petitioner, which has been registered as Civil Suit No. 108/2009. In the said civil suit, the petitioner had moved an application wherein she had pleaded that in fact, Atar Singh is not mentally challenged, as he has appeared as witness in other legal proceedings. He has and does operate bank account. Therefore, the stand being taken by the respondent No.2, Atar Singh, that he is mentally challenged is merely a bluff. According to Smt. Sunita since the testimonies of Atar Singh and copies of his bank account were submitted before the learned Magistrate, the learned Magistrate has erred in dismissing her application. Therefore, the impugned order dated 5.7.2013 should be interfered with. 4. Heard the petitioner and perused the impugned order. 5. To say the least, the stand being taken by the petitioner is misplaced. For, merely by producing copies of testimony allegedly given by Atar Singh, and by producing bank account, or statement of bank account, the petitioner does not prove the fact, at this juncture, that Atar Singh is mentally capable of filing and contesting a civil suit. According to the petitioner, the learned Magistrate has already framed an issue in the civil suit with regard to the mental capacity of the plaintiff and whether the suit is maintainable through next friend or not? Therefore, it is for the petitioner to establish her case through cogent and convincing evidence with regard to the mental capacity of Atar Singh. According to the petitioner, the learned Magistrate has already framed an issue in the civil suit with regard to the mental capacity of the plaintiff and whether the suit is maintainable through next friend or not? Therefore, it is for the petitioner to establish her case through cogent and convincing evidence with regard to the mental capacity of Atar Singh. It would be too early in the day to accept the documents submitted by her as the gospel truth, especially when the documents have yet to be proven and have yet to be marked as exhibits during the course of the trial. 6. A bare perusal of the impugned order clearly reveals that according to the learned Magistrate, he not only called Atar Singh into the court, but also posed series of questions to him. However, Atar Singh did not verbally reply to the questions, but merely waived his hands and tried to signal. Thus, prima facie, the Magistrate was convinced that Atar Singh lacks the mental capacity to answer questions. Thus, the learned Magistrate, at this juncture, was justified in rejecting the application filed by the petitioner. 7. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order dated 5.7.2013. This petition being devoid of any merit is, hereby, dismissed. The stay application also stands dismissed. 8. But, it is clarified that since an issue has already been framed about mental capacity of Atar Singh, since there is already a dispute existing between the parties about the said issue, the learned trial court is expected to critically analyse the evidence produced with regard to the said issue and to adjudicate the said issue strictly in accordance with law. Even if, the order dated 5.7.2013 is being confirmed by this Court, this judgment should not influence the final outcome of the trial.Petition Dismissed. *******