Research › Search › Judgment

Punjab High Court · body

2017 DIGILAW 2602 (PNJ)

Moti Lal v. Bhateri (Since Deceased)

2017-10-31

RITU BAHRI

body2017
JUDGMENT : Ritu Bahri, J. Present revision petition has been filed under Article 227 of the Constitution for setting aside the impugned order dated 02.09.2016, passed by learned Civil Judge (Jr. Divn.), Dadri, whereby the application (Annexure P-2) for impleading LRs of deceased Bhateri, filed by the respondents, has been allowed. 2. Brief facts of the case are that plaintiff-Bhateri filed the instant suit (Annexure P-4) for declaration to the effect that she is owner in possession of the suit land and release deed No. 2199 dated 17.08.2010 and mutation No. 1575 dated 25.06.2013 in favour of defendants is wrong, illegal and void through Suresh son of Dhan Singh being her friend claiming herself as unsound mind. 3. The defendant filed written statement dated 13.05.2014 (Annexure P-5). Plaintiff had also moved an application (Annexure P-6) for appointment of legal guardian of plaintiff and before deciding the same Bhateri died on 12.08.2014. Reply to the application was made by the petitioners on 17.03.2014 (Annexure P-7). During the pendency of the above-said application (Annexure P-6), on 30.01.2015 (Annexure P-2) the LRs of plaintiff-Bhateri moved an application for impleading her LRs. The petitioners being defendants filed reply (Annexure P-3) on 21.02.2015 by mentioning that since plaintiff-Bhateri Devi had already died the suit does not survives and application itself was not maintainable but vide impugned order dated 02.09.2016 (Annexure P-l). The application (Annexure P-2) has been allowed and the application (Annexure P-6) for appointing next friend of plaintiff to sue the suit was rendered infructuous. 4. Learned counsel for the petitioners has placed reliance upon a judgment of the Hon'ble Supreme Court passed in case Kasturi Bai and others v. Anguri Chaudhary, 2003(1) RCR(Civil) 765 wherein while examining the provisions of Order 32, Rule 15 CPC, it has been observed that it was the trial Court who has to make necessary inquiry before appointing the court guardian of the plaintiff, who is of unsound mind. A direction cannot be given by the High Court for appointment of a guardian straightway. If the trial Court had not conducted an inquiry, the High Court could set aside the order and issue a direction directing the learned trial Court to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent was incapable of protecting her interest by reason of any mental infirmity or not. If the trial Court had not conducted an inquiry, the High Court could set aside the order and issue a direction directing the learned trial Court to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent was incapable of protecting her interest by reason of any mental infirmity or not. The High Court committed the jurisdictional error in passing the judgment directing appointment of the guardian. The order of the High Court was set aside and the matter was remitted back for consideration to the trial Court in terms of Order 32, Rule 15 CPC. 5. Further, in view of judgment of this Court passed in case Dilbagh Singh v. Sawinder Kaur, 2011(2) PLR 324 , as per Order 32, Rule 15 CPC when a person adjudged to be of unsound mind either under Mental Health Act or in any other proceedings, the application has to be allowed by the trial Court after making necessary inquiry and if during the pendency of such an application, the plaintiff dies the suit in itself does not survive. 6. Therefore, the trial Court was required to examine witness and conduct inquiry vested in it under Order 32, Rule 15 CPC. The language of the Rule says that the Court has to find out if a party to the suit is, by reason of any mental infirmity, incapable of protecting his interest. Hence, if trial Court does not hold an inquiry into the aforesaid aspect relating to the plaintiff, it cannot straightway pass an order that the plaintiff was of unsound mind. 7. The above-said two judgments make it abundantly clear that when a suit is filed by a person of unsound mind along with an application for appointment of a guardian, the trial Court is required to make an inquiry and then pass an order appointing a guardian. 8. In the facts of the present case an application (Annexure P-6) was made for appointment of a guardian and during the pendency of the said application itself, plaintiff-Bhateri died. At this stage, the judgment of Andhra Pradesh High Court passed in Manthena Krishnam Raju v. Dadal Ramanaiah, 2001(2) RCR. (Civil) 200, world be relevant. In this case, the suit had been instituted along with an application on the day when Court grants permission to next friend to proceed with the plaint. At this stage, the judgment of Andhra Pradesh High Court passed in Manthena Krishnam Raju v. Dadal Ramanaiah, 2001(2) RCR. (Civil) 200, world be relevant. In this case, the suit had been instituted along with an application on the day when Court grants permission to next friend to proceed with the plaint. The plaintiff died, the Court granted the permission and there was no jurisdiction to entertain a suit by the next friend on behalf of the dead person. Since the suit itself defective and not maintainable, therefore, subsequent application for impleading LRs does not cure the initial defect of entertaining the suit. In paragraph 11 of the said judgment, it has been observed as under :- "11. All other cases cited by the learned Counsel for the respondents are the cases where the suits are validly instituted and during the pendency of the suit, when the plaintiff died, whether the same amounts to abatement or not was considered and the same are not relevant for the purpose of deciding the issue on hand. The date on which the suit was instituted and whether the Court has got jurisdiction to entertain the suit or not is the issue in the present revision. As seen from the above, the plaint which is presented on behalf a person of unsound mind (person dead) by his next friend, which has become effective for the purpose of admitting the plaint and issuing process against the defendant as per Order 32, Rule 15 CPC, is 28-6-1991. The suit is instituted only on the said date when the Court granted permission to sue by an next friend and ordered notices in interlocutory application filed under Order 32, Rule 15 CPC. Once the defendant brought the same to the notice of the Court, it is the bounden duty of the Court to examine whether the suit as such was framed on 28-6-1991 is valid and can be proceeded further or not. If no enquiry as contemplated under Order 32, Rule 15 CPC was possible, as the plaintiff is no more, the Court will not get any jurisdiction to entertain the suit filed by the next friend on behalf of a dead person. Order 32, Rule 15 CPC., will not authorise the Court to grant permission to sue by next friend of a dead person. Order 32, Rule 15 CPC., will not authorise the Court to grant permission to sue by next friend of a dead person. In such circumstances, the suit itself is defective and not maintainable as it is filed on behalf of a dead person. Therefore, mere impleading the legal representatives of the plaintiff subsequently will not cure the initial defect of entertaining the suit. In my considered view, the suit, when it was taken up for hearing on 28-6-1991 as not maintainable, which was instituted on behalf of the dead person, the appropriate course for the civil Court is to reject the plaint by sustaining the objections of the defendants when the interlocutory application was taken up for enquiry. The Court below instead of sustaining the objection, failed to exercise the jurisdiction vested in it and closed the interlocutory application stating that as the plaintiff is no more, no enquiry can be proceeded in the interlocutory application. Such a procedure adopted by the Court is not legal and is liable to be set aside. In view of the same, I see that the contention put forward by the learned Counsel for the revision petitioners/defendants merits consideration and the same has to be upheld. Accordingly the revision petition is allowed. The impugned order passed by the Court below is set aside and the plaint, as filed by the plaintiff, is not maintainable and the same has to be returned to the plaintiffs. The interlocutory application filed by the plaintiffs is dismissed. However, any observation made herein will not deprive the plaintiffs, legal representatives of the deceased plaintiff, to file a fresh suit in accordance with law." 9. In view of the above-said judgments, the impugned order is being set aside. The revision petition is allowed and it is directed that plaint be returned to the plaintiff and the LRs of the deceased plaintiff can file a fresh suit in accordance with law.