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2019 DIGILAW 2131 (RAJ)

Radheyshyam v. Mahant Ghanshyam Das

2019-08-07

ALOK SHARMA

body2019
JUDGMENT Alok Sharma, J. - The petitioner-applicant (hereafter "the applicant") is aggrieved of the order dated 19-7-2019 passed by Additional Civil Judge No. 2 6, Jaipur Metropolitan Head Quarter Sanganer in an eviction suit filed in 1993, dismissing his application under Order 32 Rule 15 read with 151 CPC for appointing him as guardian ad litem of his father Radheyshyam defendant No. 1 in the suit. 2. The facts of the case are that in 1993 the respondent-plaintiff (hereafter "the plaintiff) filed a suit for eviction and recovery of rent against four defendant tenants since 1976. Written statement of denial was filed, issues were framed and evidence of the plaintiff was recorded. The case is presently, after 26 years, at the stage of defendants' evidence. 3. The applicant on 19-7-2019 moved under Order 32 Rule 15 read with 151 CPC for his father defendant No. 1 Radheyshyam being represented by him for reason of his disability to properly defend himself in the eviction suit for reason of his being 85 years of age and debilitation by chronic illnesses. Medical report of the defendant No. l being a heart patient and suffering from diabetes were also placed on record. 4. The plaintiff opposed the application on the ground that the defendant Radheyshyam was despite his age healthy and that in any event the extent of the disease of heart and diabetes did not entail incapacity or disability for him to defend himself. It was submitted that the defendant was going about his daily chores without difficulty, was not confined or mentally incapacitated. It wassubmitted that the application was a misuse to further delay the eviction suit pending for the last 23 years. Besides in any event the defendants No.2 to 4, Om prakash, Sitaram and Ramprakash with commonality of interest with defendant No. 1 were available to set up all possible defences to the eviction suit. 5. The trial court considering the arguments of both the parties dismissed the applicant's application under Order 32 Rule 15 read with 151 CPC inter alia on the ground that earlier an application filed by defendant No. 1 under Order 18 rule 4 read with 151 CPC for appointment of Commissioner for recording his evidence was dismissed on 16-4-2019. And thereafter on 5-7-2019 a direction was issued to keep the defendant No. 1 Radheyshyam present for his defence evidence in the trial court. And thereafter on 5-7-2019 a direction was issued to keep the defendant No. 1 Radheyshyam present for his defence evidence in the trial court. The trial court also observed that the case before it was at No.2 in the list of old pending cases, and the High Court had issued directions to expeditiously decide such old cases. It was recorded while dismissing the application that in the event of evidence of the defendant not being laid on the next date, it would be closed. The trial court noting the background facts of the pending trial concluded that the Order 32 Rule 15 CPC application was a misuse of the law's processes and deserved dismissal. 6. Hence this petition. 7. Heard counsel for the defendant and perused the impugned order dated 19-7-2019 passed by the trial court. 8. The suit for eviction was filed in the year 1993. The discretion of the trial court under Order 32 Rule 15 CPC is inter alia dependent on the fact of the party before it being of unsound mind or suffering a disability rendering him incapable of defending self. Mere age, even of 85 years, does not by itself entail a disability warranting appointment of a guardian ad litem. The medical reports regarding alleged diseases of defendant Radheyshyam related to his being heart patient and suffering from diabetes. They are however only chronic not diseases of disability rendering defences of one suffering them by self impossible or even unlikely. The defendant No. l's application under Order 18 rule 4 CPC for appointment of Commissioner for recording his evidence was dismissed on 16-4-2019. The application under Order 32 Rule 15 CPC was thereafter filed to delay the trial. The trial court has rightly observed that the intention of the applicant was only to delay, on his father's behalf, the disposal of the suit. The order passed by the trial court is well considered and buttressed by cogent reasons. Nothing perverse or patently illegal obtaining to vitiate it. I would not be therefore inclined to exercise this court's supervisory jurisdiction under Article 227 of the Constitution of India in the instant case. Petition dismissed. 9. The trial court is directed to dispose of the underlying eviction suit within six months from today. Nothing perverse or patently illegal obtaining to vitiate it. I would not be therefore inclined to exercise this court's supervisory jurisdiction under Article 227 of the Constitution of India in the instant case. Petition dismissed. 9. The trial court is directed to dispose of the underlying eviction suit within six months from today. In so doing the trial court should adhere to Order 17 CPC and also to the observations of the Hon'ble Supreme Court in the case of Shiv Cotex Vs. Tirgun Auto Plast (P) Ltd. [ (2011) 9 SCC 678 ] , where the Hon'ble Supreme Court has held that adjournment should be ordinarily limited to three times. As the underlying eviction suit relates to 1993 and is over 26 years old, I would also direct that all miscellaneous applications in the trial be decided in its discretion when warranted by the trial court along with the final adjudication. 10. The petition stands accordingly dismissed.