JUDGMENT : NUPUR BHATI, J. 1. Though the matter is listed in the fresh category however, on joint request of the counsel for the parties, the matter is being heard today itself. 2. This writ petition has been filed under Article 226 and 227 of the Constitution of India with the following prayers: “(i) by an appropriate writ, order or direction; an order dated 01.03.2024 (Annex.-5) may kindly be quashed and set aside. (ii) by an appropriate writ, order or direction; an application (Annex.-3) of the Petitioner under Order 32 Rule 4, 5, 15 and read with Sec. 151 of CPC may kindly be Allowed. (iii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.” 3. Brief facts of the case are that the performa respondent No. 4-plaintiff preferred a suit for Specific performance of contract, cancellation of gift deed and for Perpetual Injunction against the Respondent-defendants on the ground that respondent No. 1 possessed an agricultural land at khasra No. 121 admeasuring 14 bigha 1 biswa, Khasra No. 121 /1 admeasuring 3 bigha 12 biswa, khasra No. 122 admeasuring 17 bigha 19 biswa and Khasra No. 122/1 admeasuring 12 bigha and total land being 47 Bigha 12 biswa at Chak-1, Patwar Mandal Jajiwal, Tehsil and district Jodhpur which the respondent agreed to sell the aforementioned land in dispute to the petitioner through an agreement dated 15.07.2021 for consideration of an amount of rupees 90 lacs. Thereafter, in pursuance of the same, the plaintiff requested the respondent No. 1 to execute the sale deed which was denied by the respondent No. 1 and thus, the plaintiff preferred the aforementioned suit (Annex.1). 4. Thereafter the respondents No 1 and 2 filed a joint written statement (Annex.2) and denied all the contentions stated in the plaint and also raised preliminary objections in regard to maintainability of the suit. 5. At the stage of plaintiff evidence, the petitioner filed an application dated 07.02.2024 (Annex.3) under Order 32 Rule 4, 5 and 15 CPC for appointment of next friend of the plaintiff-performa respondent due to her old age and medical grounds. Thereafter the respondent No. 1 and 2 filed reply (Annex.4) to the aforementioned application. 6. The learned trial court rejected the application filed by the petitioner vide order dated 01.03.2024 (Annex.5). Thereafter the respondent No. 1 and 2 filed reply (Annex.4) to the aforementioned application. 6. The learned trial court rejected the application filed by the petitioner vide order dated 01.03.2024 (Annex.5). Thus the petitioner aggrieved of the order dated 01.03.2024 has preferred this writ petition. 7. Learned counsel for the petitioner submits that the order dated 01.03.2024 (Annex.5) is arbitrary illegal and against the settled preposition of law as laid down under Order 32 Rule 4 and 15 CPC, as the petitioner being an old lady of age 88 having such medical conditions that she is not in a position physically and mentally both to attend the court and contest the case by herself and therefore, the application for appointment of a next friend for her was wrongly rejected. He further submits that the suit filed in the trial court is that of the plaintiff herself and thus no prejudice will be caused to the respondent if next friend is appointed by the trial court as any delay if is caused then the same would affect only the plaintiff. 8. Learned counsel for the petitioner also submits that the plaintiff is of unsound mind and in this situation the court is empowered to appoint a guardian when he/she is incapable of protecting his/her rights when suing or being sued by reason of mental infirmity therefore the application filed by the petitioner under Order 32 ought to be allowed. The provisions of Order 32 Rule 4 and 15 CPC are reproduced here as under: “ORDER XXXII - Suits by or against minors and persons of unsound mind: 4. Who may act as next friend or he appointed guardian for the suit: (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. (2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be. (3) No person shall without his consent [in writing] be appointed guardian for the suit. (4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested [or out of the property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require. 15. Rules 1 to 14 (Except rule 2A) to apply to persons of unsound mind.—Rules 1 to 14 (except Rule 2A) 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 being sued.” In support of his submissions learned counsel for the petitioner places reliance on the judgment passed by the Hon’ble Apex Court in the case Kasturi Bai and Ors. vs. Anguri Chaudhary (Civil Appeal No. 818/2001) decided on 05.02.2003. 9. Per contra, learned counsel for the respondents submits that on 25.11.2022 the issues were framed by the trial court and since then the evidence of the plaintiff is pending, thereafter an opportunity was granted to the plaintiff to present the evidence on affidavit which was not complied with by the plaintiff. 9. Per contra, learned counsel for the respondents submits that on 25.11.2022 the issues were framed by the trial court and since then the evidence of the plaintiff is pending, thereafter an opportunity was granted to the plaintiff to present the evidence on affidavit which was not complied with by the plaintiff. He also submits that on 12.03.2023 the trial court passed an order that, it is the duty of the plaintiff to file evidence and the plaintiff must be present in the court and must file the evidence and give the copy of the same to the respondents. He further submits that again on 3.11.2023 last opportunity was granted to the plaintiff to file evidence on 17.11.2023 after paying cost of rupees 1000/- and despite the same the evidence was not filed by the plaintiff and thereafter, the plaintiff filed the evidence on 17.12.2023. He also submits that the plaintiff was not present in court on 5.01.2024 for which cost of rupees 1500/- was imposed on the plaintiff, however an application was filed on 07.02.2024 by the petitioner-applicant, the son of the plaintiff, who is not even a party to the suit nor a guardian for the plaintiff and thus the application filed by the petitioner was rightly rejected. He further submits that during the pendency of the suit it was never mentioned that the plaintiff is suffering from mental infirmity or disorder and the application has been filed by the petitioner to merely delay the court proceedings. 10. Learned counsel for the respondent also submits that the suit filed by the petitioner is illegal and malafide and the agreement as mentioned is also forged which is not admissible as an evidence. He further submits that there is no evidence produced by the petitioner to prove the age and the medical conditions of the plaintiff-performa respondent and thus the contentions of the petitioner that the plaintiff- performa respondent is an old lady and not physically and mentally fit are false and baseless. In Support of his submissions the learned counsel for the respondent placed reliance on the judgment passed by the coordinate bench of this Court at Jaipur Bench in case of Radheshyam and Anr. vs. Mahant Ghanshyam Das and Ors. (SB Civil Writ petition No. 12599/2019) decided on 07.08.2018. 11. Heard learned counsel for the parties; perused the material available on record and the judgments cited at Bar. vs. Mahant Ghanshyam Das and Ors. (SB Civil Writ petition No. 12599/2019) decided on 07.08.2018. 11. Heard learned counsel for the parties; perused the material available on record and the judgments cited at Bar. 12. The provisions as laid down under Order XXXII Rule 15 CPC are not complied with which mandates enquiry and states that the persons adjudged, before or during the pendency of the suit, to be of unsound mind and persons who, though not so adjudged, but 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, However despite the petitioner arguing the fact that the plaintiff is of unsound mind, the trial court has rejected the application filed by the petitioner under XXXII Rule 4, 5 and 15 CPC without conducting the enquiry as laid down under the provisions of Order XXXII. 13. It is further seen from the impugned order dated 01.03.2024 (Annex.5) that the trial court has observed that the petitioner invoked Order XXXII Rule 4, 5 and 15 CPC on the ground of plaintiff being an old age, illiterate person belonging to a rural background and not being physically fit and based on which she is not able to protect her interest when suing or being sued by, however on perusal of the application dated 07.02.2024 (Annex.3) filed by the petitioner it is emphatically submitted in it that she is suffering from mental disorder and infirmity and is mentally weak and thus cannot protect her interest in the matter and thus prayed to appoint a next friend, however, the trial court has rejected the aforementioned application on the grounds of delay tactis caused by the plaintiff and this observation of the trial court cannot be sustained as the suit was filed by the plaintiff i.e. the mother of the petitioner herself and if at all delay is caused then the plaintiff herself will suffer the same. 14. The provisions regarding representation and prosecution of the suit on behalf of minor person or unsound mind are dealt with in Order 32 of CPC and, therefore, in the first instance this Court refers the provisions of CPC. In that behalf, the prevailing procedure ought to be followed when the plaintiff is alleged to be a person of unsound mind. The provisions regarding representation and prosecution of the suit on behalf of minor person or unsound mind are dealt with in Order 32 of CPC and, therefore, in the first instance this Court refers the provisions of CPC. In that behalf, the prevailing procedure ought to be followed when the plaintiff is alleged to be a person of unsound mind. It is also seen that Rules 1 to 14 of Order 32 CPC deals with the procedure to be followed when the plaintiff is a minor. In the case of one of the party who may be a person of unsound mind, the procedure is laid down in Rule 15 of Order 32 CPC, reproduced and referred above. 15. The above Rule contemplates two type of cases i.e. the first category is where a person is already adjudged to be of unsound mind, is covered under Rule 15 CPC. However, there may be persons of unsound mind, who are not so adjudged by the court and in such a case, the procedure that has to be adopted is required to be considered by this Court. Further, upon perusal of the second part of Rule 15, quoted above, it is reflected that in case of such a person, who is not already adjudged, an enquiry is required to be conducted in order to find out that whether by reason of unsoundness of mind or infirmity, the person concerned is incapable of protecting his/her interest when suing or being sued. 16. In the present case, the original plaintiff/respondent No. 4 herein, has not been adjudged to be of unsound mind. Thus, the case of the original plaintiff obviously falls under second part of Rule 15 CPC and thus in such a case, the court has to make an inquiry whether she is in fact so. 17. Upon perusal of order impugned 01.03.2024 (Annex.-5) passed by the learned Trial Court, this Court finds that the learned Trial Court has not made any enquiry in order to see whether the original plaintiff/respondent No. 4 herein is suffering from any unsoundness of mind and is not in a position to protect her interest or contest the suit filed by her. The learned Trial Court has arrived at the conclusion that the applicant has not placed on record any medical certificate to prove that the original plaintiff is of unsound mind and is unable to protect her interest. Further, the learned Trial Court has arrived at a conclusion that the application has been preferred by the applicant/petitioner with a view to cause delay in adjudication of the while observing that despite granting various opportunities to the plaintiff to lead her evidence, the plaintiff failed to lead evidence and thereafter on 03.11.2023 such opportunity was extended to the plaintiff while imposing cost of Rs.1000/-, however, the plaintiff failed to lead evidence. On 05.01.2024 while reiterating the earlier opportunities being extended a cost of Rs.1500/- was also imposed while granting her last opportunity to lead evidence and it was only thereafter that that the application under Order 32 Rule 15 CPC has been filed. 18. It is seen from the application preferred by the petitioner under Order 32 Rules 4, 5 and 15 read with S. 151 CPC that a specific pleading has been taken while submitting that the original plaintiff, on account of her age, is suffering from mental and physical infirmity and is also taking psychiatric treatment, for which certain prescription had been exhibited; though the applicant/petitioner herein failed to produce before the Court any certificate from the concerned doctor, from which the original plaintiff was undertaking treatment. However, it was obligatory upon the learned Trial Court to make enquiry in the said case in order to ascertain whether the original plaintiff is suffering from any unsoundness or mental infirmity, on account of which she would be unable to protect her interest and contest the suit. 19. This Court finds that in the case of Kastri Bai (supra), the Hon’ble Apex Court has observed that if it is found by court on inquiry that any person is incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. The relevant paragraphs of the said judgment is reproduced here as under: “11. On a bare perusal of the said provision, it is evident that the Court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. The relevant paragraphs of the said judgment is reproduced here as under: “11. On a bare perusal of the said provision, it is evident that the Court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. The respondent did not contend that appellant No. 1 herein is of unsound mind. As noticed hereinbefore, the respondent herself had filed an application before the trial court for holding an inquiry to the effect that she suffers from mental infirmity. 12. The learned trial court refused to do the same and in that view of the matter the High Court, in our opinion, while setting aside the said order could only issue a direction directing the learned trial Judge to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent herein was incapable of protecting her interest by reason of any mental infirmity or not. As no such inquiry was held, there cannot be any doubt whatsoever that the learned Single Judge committed a jurisdictional error in passing the impugned judgment which, the Division Bench as noticed hereinbefore upheld. 13. For the reasons aforementioned, the impugned judgments are set aside and the matter is directed to be remitted to the learned trial Judge for consideration of the matter afresh strictly in terms of Order 32 Rule 15 of the Code of Civil Procedure as also in the light of the observations made hereinbefore.” 20. 13. For the reasons aforementioned, the impugned judgments are set aside and the matter is directed to be remitted to the learned trial Judge for consideration of the matter afresh strictly in terms of Order 32 Rule 15 of the Code of Civil Procedure as also in the light of the observations made hereinbefore.” 20. In the case of Mayadhar Samant v. Birabar Kuanr, 1961 (3) OJD 259, held as under: “The settled position in law is that in a matter like this for determination of the question of alleged insanity of a party, it is deemed necessary that the party, alleged to be insane may be got examined by a medical expert and a certificate obtained from him as to whether he is mentally fit to protect his interest; the Court must conduct on enquiry into the alleged mental infirmity of the person and come to a definite conclusion that the alleged act is well founded before proceeding to appoint guardian for him.” 21. Further, in another case of Mohammed Ibrahim v. Shaik Mohammed, AIR 1949 Mad 292, the Hon’ble Madras High Court emphasized that the Courts have inherent powers to find out whether the plaintiff is a person of sound or unsound mind even though an enquiry to obtain representation was permitted to the next friend. The issue is an open issue between the plaintiff and the defendant and the Court has ample power to decide that issue if raised by any of the parties in their pleadings. As discussed above and the judgments examined by this Court, there is no doubt that the Court has power to investigate the truthfulness of the submissions of the next friend if a challenge is thrown out. 22. In the present case, the learned Trial Court has practically not made the enquiry when the issue was raised by the applicant/ petitioner as to whether the original plaintiff/respondent No. 4 herein was in fact a person of unsound mind and instead of holding an enquiry, the learned Trial Court assumed that the application under Order 32 Rule 15 CPC has been filed in order to cause delay in adjudication of the suit. 23. In the light of the above discussion, this Court allows the writ petition. The order dated 01.03.2024 (Annex.5) passed by learned Additional District Judge No. 7, Jodhpur Metropolitan, Jodhpur is quashed and set aside. 23. In the light of the above discussion, this Court allows the writ petition. The order dated 01.03.2024 (Annex.5) passed by learned Additional District Judge No. 7, Jodhpur Metropolitan, Jodhpur is quashed and set aside. The matter is remanded back to the learned Trial Court with a direction to hold enquiry as contemplated under Order 32 Rule 15 CPC and to decide whether the plaintiff is of unsound mind viz. if she is incapable of protecting her interest when suing or being sued by reason of any mental infirmity. The parties are accordingly directed to appear before the learned Trial Court on 25.04.2024 and the learned Trial Court shall thereafter, after providing ample opportunity of hearing to the parties decide and dispose of the application under Order 32 Rule 15 CPC expeditiously and thereafter proceed to decide the suit accordingly. Stay Petition as also misc. application, if any, shall stand disposed of accordingly.