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Himachal Pradesh High Court · body

2019 DIGILAW 1277 (HP)

Kishori Lal v. Vijay Kumar Sood

2019-09-02

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 08.05.2019 passed by the Court of learned District Judge, Shimla, vide which an application filed by the present petitioner under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint, has been dismissed. 2. Brief facts necessary for the adjudication of the present petition are that respondents/plaintiffs have filed a suit for possession against the petitioner/defendant with respect to the portion of a shop, measuring about 5x7 feet, in shop No. 93, The Mall Shimla, built upon land comprised in Khasra No. 627, Bazaar Ward, Bada Shimla, as also for recovery of use and occupation charges. A decree for recovery of 1.00 Lac alongwith pendilite and future interest has also been prayed for. 3. Petitioner filed an application under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint being barred by law inter alia on the ground that petitioner was mentally infirm and was undergoing treatment in the Department of Psychiatry, IGMC, Shimla, yet, plaintiffs sued him in his independent capacity, without instituting the suit through next friend of the petitioner/defendant. According to the petitioner, even the service in the suit was not properly effected upon him. Same was effected on some family member of the petitioner. Appearance was put through attorney of defendant by filing memo of appearance and thereafter, power of attorney was also filed through one Power of Attorney holder of the petitioner. Even before the filing of the suit, a notice was issued by the plaintiff on false and flimsy grounds to the petitioner which was replied by the attorney of the petitioner and the fact of mental infirmity of the petitioner was brought to the notice of the plaintiffs, yet, plaintiffs chose to file a suit against a mentally infirm person, which was barred in law. On these grounds, petitioner prayed that plaint be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure. 4. Plaintiffs contested the said application. They mentioned in the reply that they had filed an eviction petition against one Gopal Dass Verma before learned Rent Controller(1), Shimla. Gopal Dass surrendered his tenancy rights. On these grounds, petitioner prayed that plaint be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure. 4. Plaintiffs contested the said application. They mentioned in the reply that they had filed an eviction petition against one Gopal Dass Verma before learned Rent Controller(1), Shimla. Gopal Dass surrendered his tenancy rights. Therefore, the status of the defendant became that of an unauthorized occupant and in the said petition, Kishori Lal, i.e. present petitioner, had himself signed reply as also the affidavit in support of the same. In the Civil Suit he had been repeatedly seeking adjournments to file written statement after service and after the statutory period of 90 days to file written statement was over, application under Order 7, Rule 11(d) of the Code was filed by him. It was further mentioned in the reply that the averments made in the application were self contradictory, because in law, a mentally infirm person could not execute a General Power of Attorney. It was denied that defendant was mentally infirm and as per the plaintiffs, the filing of the application was abuse of process of law. According to them, at the most, an application could have been filed under Order 32, Rule 15 of the Civil Procedure Code, for appointing a guardian but the plaint could not be rejected. 5. Vide impugned order, learned Court below has dismissed the application by holding that plaintiffs were not having any knowledge at the time of filing of the suit that the defendant was not able to defend the suit due to his mental incapacity and after coming to know of his mental incapacity, plaintiffs had already moved an application under Order 32, Rule 15 of the Code, which was pending adjudication and for which purpose, report of the Doctor had already been called to judge the mental status of the defendant, hence, there was no merit in the application. 6. Mr. 6. Mr. G.C. Gupta, learned Senior Counsel appearing for the petitioner has argued that the impugned order is not sustainable in the eyes of law as learned Trial Court while dismissing the application filed by the petitioner under Order 7, Rule 11(d) of the Code erred in not appreciating that the suit filed by the plaintiffs against the defendant, who was mentally infirm, was not maintainable in law, in view of the provisions of the Mental Healthcare Act, 2017 and as this extremely important aspect of the matter had been completely ignored by the learned Court below, the order was liable to be set aside and the application filed by the defendant was liable to be allowed. He has further argued that learned Trial Court had also completely erred in not appreciating the provisions of Order 32, Rules 1 and 2 of the Code of Civil Procedure, which also barred the filing of the suit. 7. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the respondents has argued that the learned Trial Court rightly rejected the application by passing a reasoned and speaking order, in which all aspects of the matter have been discussed in detail. He has further argued that the contention of the petitioner that the suit was barred by the provisions of the Mental Healthcare Act, 2017, is mis-conceived because the suit is not barred under the provisions of the said Act. 8. I have heard learned Senior Counsel appearing for the parties and also gone through the impugned order as well as record of the case. 9. Order 7, Rule 11(d) of the Code of Civil Procedure inter alia provides that a plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. 10. A perusal of the record demonstrates that the suit filed by the plaintiffs was for possession of the suit land and recovery of 1.00 Lac alongwith pendenlite and future interest and also for future use and occupation charges inter alia on the ground that possession over the same of the defendant was illegal. As per the plaintiffs, they were owners in possession of the suit property which earlier was under the tenancy of Shri Gopal Dass Verma and before him, of his predecessor-in-interest, who had sublet a portion thereof to the father of the defendant. As per the plaintiffs, they were owners in possession of the suit property which earlier was under the tenancy of Shri Gopal Dass Verma and before him, of his predecessor-in-interest, who had sublet a portion thereof to the father of the defendant. Gopal Dass had surrendered his tenancy in the entire western portion of shop No. 93, The Mall Shimla, whereby he also handed over the possession of remaining portion of the tenanted premises in his possession to the plaintiffs and thereafter, the tenancy rights with respect to the western portion of the shop in question, including the suit property which was sublet, came to an end after the same was surrendered by Gopal Dass Verma, which led to withdrawal of the eviction petition filed against Gopal Dass and as defendant still continued to be in possession over the suit property, his possession whereof was illegal and for possession thereof, the suit was filed. 11. It is well settled law that while deciding an application under Order 7, Rule 11(d) of the Code, the Court is not to travel beyond the contents of the plaint to ascertain as to whether the plaint entails rejection or not. Prima facie, from the perusal of the contents of the plaint, it cannot be said that the plaint deserves rejection as the suit appears from the statement in the plaint to be barred by any law. 12. Be that as it may, this Court will now address the issue raised by learned Senior Counsel appearing for the plaintiffs that as the defendant was mentally unsound, therefore, the suit as filed, was not maintainable in view of the provisions of the Mental Healthcare Act, 2017, as also Order 32, Rules 1 and 2 of the Code. 13. I will first deal with the provisions of Order 32 of the Civil Procedure Code. Order 32 of the Civil Procedure Code deals with suit by or against a minor or a person of unsound mind. Order 32, Rule 1 provides that 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. Order 32 of the Civil Procedure Code deals with suit by or against a minor or a person of unsound mind. Order 32, Rule 1 provides that 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. Order 32, Rule 2 of the Code provides that where a suit is instituted on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented and notice of such application shall be given to such persons, and the Court, after hearing his objections, if any, may make such order in the matter as it thinks fit. 14. A bare perusal of Rules 1 and 2 of Order 32 of the Code demonstrates that they deal with a situation where a suit is filed by a minor. Rule 15 of Order 32 of the Code provides that 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. 15. This means that the provisions of Order 32, which relate to a minor have to be read ipso facto also in the case of a person who is found to be of unsound mind or is incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued. 16. A plain reading of Rules 1 and 2 of Order 32 of the Code demonstrates that these two rules have got nothing to do as far as the present lis is concerned because here it is not a case where the plaint has been filed by a person of unsound mind or by a person who by a reason of mental infirmity, is not in a position to protect his interest. In this case, objection is that suit has been filed against a person who is mentally infirm. In this case, objection is that suit has been filed against a person who is mentally infirm. This factual situation is not covered either under Rule 1 or Rule 2 of Order 32 of the Code. 17. His second contention that the plaint was hit by the provisions of Order 7, Rule 11(d) of the Code on the ground that the suit was barred by the provisions of the Mental Healthcare Act, 2017, is also, in my considered view, without any merit. Learned Senior Counsel has relied upon the provisions of Section 3 (5) and Section 116 of the said Act to contend that the suit was not maintainable before learned Civil Court. Chapter II of the Mental Healthcare Act, 2017 deals with mental illness and capacity to make mental healthcare and treatment decisions. 18. Sub Section 5 of Section 3 of the Act, 2017 provides that determination of a person's mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent Court. Similarly, Section 116 of the 2017, Act simply states that no Civil Court has jurisdiction to entertain a suit or proceeding, in respect of any matter which the Authority or the Board is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority, in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. The functions of the Authority which is so defined under Section 2(c) of the Act, are provided for in Chapter X, XI and XII of the Act and a perusal of the said Chapters demonstrates that the same do not envisage conferment of any power upon the Authority under Section 2(c) of the Act, 2017, to adjudicate a lis, as has been filed by the respondents herein against the petitioner. Nor, this is a case wherein the plaintiffs have filed a suit against the petitioner with regard to any of the functions which the Authority has defined under Section 2(c) of the 2017, Act, is to perform under the said Act, therefore, the plea of the learned Senior Counsel appearing for the petitioner that the suit was barred under the provisions of the Mental Healthcare Act, 2017, is also completely ill founded. On the other hand, this is a case which is squarely covered by the provisions of Order 32, Rule 3 of the Code wherein the Court has the authority to appoint a guardian where the Court is satisfied that the defendant is a person of unsound mind or is incapable of by reason of mental infirmity of protecting his interest. 19. Therefore, the application filed under Order 7, Rule 11(d) of the Civil procedure Code by the present petitioner for rejection of the plaint was totally mis-conceived and rejection of the same by the learned Trial Court by way of impugned order, which is both a well reasoned and also speaking order, cannot be said to be bad in law. This Court is purposely restraining from making any observation over the mental soundness of the petitioner in issue because there is a dispute with regard to the same between the parties and even otherwise, it is for the learned Trial Court to take a call on the said issue, in accordance with law and the provisions of the Civil Procedure Code. With these observations, this petition is dismissed by holding that the impugned order, i.e. order dated 08.05.2019, passed by learned District Judge, Shimla, in C.M.A. No. 184-S/6 of 2019, is a well reasoned and speaking order. Pending miscellaneous application(s), if any, also stand disposed of. JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 08.05.2019 passed by the Court of learned District Judge, Shimla, vide which an application filed by the present petitioner under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint, has been dismissed. 2. Brief facts necessary for the adjudication of the present petition are that respondents/plaintiffs have filed a suit for possession against the petitioner/defendant with respect to the portion of a shop, measuring about 5x7 feet, in shop No. 93, The Mall Shimla, built upon land comprised in Khasra No. 627, Bazaar Ward, Bada Shimla, as also for recovery of use and occupation charges. A decree for recovery of 1.00 Lac alongwith pendilite and future interest has also been prayed for. 3. A decree for recovery of 1.00 Lac alongwith pendilite and future interest has also been prayed for. 3. Petitioner filed an application under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint being barred by law inter alia on the ground that petitioner was mentally infirm and was undergoing treatment in the Department of Psychiatry, IGMC, Shimla, yet, plaintiffs sued him in his independent capacity, without instituting the suit through next friend of the petitioner/defendant. According to the petitioner, even the service in the suit was not properly effected upon him. Same was effected on some family member of the petitioner. Appearance was put through attorney of defendant by filing memo of appearance and thereafter, power of attorney was also filed through one Power of Attorney holder of the petitioner. Even before the filing of the suit, a notice was issued by the plaintiff on false and flimsy grounds to the petitioner which was replied by the attorney of the petitioner and the fact of mental infirmity of the petitioner was brought to the notice of the plaintiffs, yet, plaintiffs chose to file a suit against a mentally infirm person, which was barred in law. On these grounds, petitioner prayed that plaint be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure. 4. Plaintiffs contested the said application. They mentioned in the reply that they had filed an eviction petition against one Gopal Dass Verma before learned Rent Controller(1), Shimla. Gopal Dass surrendered his tenancy rights. Therefore, the status of the defendant became that of an unauthorized occupant and in the said petition, Kishori Lal, i.e. present petitioner, had himself signed reply as also the affidavit in support of the same. In the Civil Suit he had been repeatedly seeking adjournments to file written statement after service and after the statutory period of 90 days to file written statement was over, application under Order 7, Rule 11(d) of the Code was filed by him. It was further mentioned in the reply that the averments made in the application were self contradictory, because in law, a mentally infirm person could not execute a General Power of Attorney. It was denied that defendant was mentally infirm and as per the plaintiffs, the filing of the application was abuse of process of law. It was further mentioned in the reply that the averments made in the application were self contradictory, because in law, a mentally infirm person could not execute a General Power of Attorney. It was denied that defendant was mentally infirm and as per the plaintiffs, the filing of the application was abuse of process of law. According to them, at the most, an application could have been filed under Order 32, Rule 15 of the Civil Procedure Code, for appointing a guardian but the plaint could not be rejected. 5. Vide impugned order, learned Court below has dismissed the application by holding that plaintiffs were not having any knowledge at the time of filing of the suit that the defendant was not able to defend the suit due to his mental incapacity and after coming to know of his mental incapacity, plaintiffs had already moved an application under Order 32, Rule 15 of the Code, which was pending adjudication and for which purpose, report of the Doctor had already been called to judge the mental status of the defendant, hence, there was no merit in the application. 6. Mr. G.C. Gupta, learned Senior Counsel appearing for the petitioner has argued that the impugned order is not sustainable in the eyes of law as learned Trial Court while dismissing the application filed by the petitioner under Order 7, Rule 11(d) of the Code erred in not appreciating that the suit filed by the plaintiffs against the defendant, who was mentally infirm, was not maintainable in law, in view of the provisions of the Mental Healthcare Act, 2017 and as this extremely important aspect of the matter had been completely ignored by the learned Court below, the order was liable to be set aside and the application filed by the defendant was liable to be allowed. He has further argued that learned Trial Court had also completely erred in not appreciating the provisions of Order 32, Rules 1 and 2 of the Code of Civil Procedure, which also barred the filing of the suit. 7. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the respondents has argued that the learned Trial Court rightly rejected the application by passing a reasoned and speaking order, in which all aspects of the matter have been discussed in detail. 7. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the respondents has argued that the learned Trial Court rightly rejected the application by passing a reasoned and speaking order, in which all aspects of the matter have been discussed in detail. He has further argued that the contention of the petitioner that the suit was barred by the provisions of the Mental Healthcare Act, 2017, is mis-conceived because the suit is not barred under the provisions of the said Act. 8. I have heard learned Senior Counsel appearing for the parties and also gone through the impugned order as well as record of the case. 9. Order 7, Rule 11(d) of the Code of Civil Procedure inter alia provides that a plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. 10. A perusal of the record demonstrates that the suit filed by the plaintiffs was for possession of the suit land and recovery of 1.00 Lac alongwith pendenlite and future interest and also for future use and occupation charges inter alia on the ground that possession over the same of the defendant was illegal. As per the plaintiffs, they were owners in possession of the suit property which earlier was under the tenancy of Shri Gopal Dass Verma and before him, of his predecessor-in-interest, who had sublet a portion thereof to the father of the defendant. Gopal Dass had surrendered his tenancy in the entire western portion of shop No. 93, The Mall Shimla, whereby he also handed over the possession of remaining portion of the tenanted premises in his possession to the plaintiffs and thereafter, the tenancy rights with respect to the western portion of the shop in question, including the suit property which was sublet, came to an end after the same was surrendered by Gopal Dass Verma, which led to withdrawal of the eviction petition filed against Gopal Dass and as defendant still continued to be in possession over the suit property, his possession whereof was illegal and for possession thereof, the suit was filed. 11. It is well settled law that while deciding an application under Order 7, Rule 11(d) of the Code, the Court is not to travel beyond the contents of the plaint to ascertain as to whether the plaint entails rejection or not. 11. It is well settled law that while deciding an application under Order 7, Rule 11(d) of the Code, the Court is not to travel beyond the contents of the plaint to ascertain as to whether the plaint entails rejection or not. Prima facie, from the perusal of the contents of the plaint, it cannot be said that the plaint deserves rejection as the suit appears from the statement in the plaint to be barred by any law. 12. Be that as it may, this Court will now address the issue raised by learned Senior Counsel appearing for the plaintiffs that as the defendant was mentally unsound, therefore, the suit as filed, was not maintainable in view of the provisions of the Mental Healthcare Act, 2017, as also Order 32, Rules 1 and 2 of the Code. 13. I will first deal with the provisions of Order 32 of the Civil Procedure Code. Order 32 of the Civil Procedure Code deals with suit by or against a minor or a person of unsound mind. Order 32, Rule 1 provides that 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. Order 32, Rule 2 of the Code provides that where a suit is instituted on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented and notice of such application shall be given to such persons, and the Court, after hearing his objections, if any, may make such order in the matter as it thinks fit. 14. A bare perusal of Rules 1 and 2 of Order 32 of the Code demonstrates that they deal with a situation where a suit is filed by a minor. Rule 15 of Order 32 of the Code provides that 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. 15. 15. This means that the provisions of Order 32, which relate to a minor have to be read ipso facto also in the case of a person who is found to be of unsound mind or is incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued. 16. A plain reading of Rules 1 and 2 of Order 32 of the Code demonstrates that these two rules have got nothing to do as far as the present lis is concerned because here it is not a case where the plaint has been filed by a person of unsound mind or by a person who by a reason of mental infirmity, is not in a position to protect his interest. In this case, objection is that suit has been filed against a person who is mentally infirm. This factual situation is not covered either under Rule 1 or Rule 2 of Order 32 of the Code. 17. His second contention that the plaint was hit by the provisions of Order 7, Rule 11(d) of the Code on the ground that the suit was barred by the provisions of the Mental Healthcare Act, 2017, is also, in my considered view, without any merit. Learned Senior Counsel has relied upon the provisions of Section 3 (5) and Section 116 of the said Act to contend that the suit was not maintainable before learned Civil Court. Chapter II of the Mental Healthcare Act, 2017 deals with mental illness and capacity to make mental healthcare and treatment decisions. 18. Sub Section 5 of Section 3 of the Act, 2017 provides that determination of a person's mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent Court. Similarly, Section 116 of the 2017, Act simply states that no Civil Court has jurisdiction to entertain a suit or proceeding, in respect of any matter which the Authority or the Board is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority, in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. The functions of the Authority which is so defined under Section 2(c) of the Act, are provided for in Chapter X, XI and XII of the Act and a perusal of the said Chapters demonstrates that the same do not envisage conferment of any power upon the Authority under Section 2(c) of the Act, 2017, to adjudicate a lis, as has been filed by the respondents herein against the petitioner. Nor, this is a case wherein the plaintiffs have filed a suit against the petitioner with regard to any of the functions which the Authority has defined under Section 2(c) of the 2017, Act, is to perform under the said Act, therefore, the plea of the learned Senior Counsel appearing for the petitioner that the suit was barred under the provisions of the Mental Healthcare Act, 2017, is also completely ill founded. On the other hand, this is a case which is squarely covered by the provisions of Order 32, Rule 3 of the Code wherein the Court has the authority to appoint a guardian where the Court is satisfied that the defendant is a person of unsound mind or is incapable of by reason of mental infirmity of protecting his interest. 19. Therefore, the application filed under Order 7, Rule 11(d) of the Civil procedure Code by the present petitioner for rejection of the plaint was totally mis-conceived and rejection of the same by the learned Trial Court by way of impugned order, which is both a well reasoned and also speaking order, cannot be said to be bad in law. This Court is purposely restraining from making any observation over the mental soundness of the petitioner in issue because there is a dispute with regard to the same between the parties and even otherwise, it is for the learned Trial Court to take a call on the said issue, in accordance with law and the provisions of the Civil Procedure Code. With these observations, this petition is dismissed by holding that the impugned order, i.e. order dated 08.05.2019, passed by learned District Judge, Shimla, in C.M.A. No. 184-S/6 of 2019, is a well reasoned and speaking order. Pending miscellaneous application(s), if any, also stand disposed of.