In Raveendran Vs. Sobana AIR 2008 Ker 145= MANU/KE/0754/2007, Kerala High Court had an occasion
to deal with the issue whether a deaf and dumb person can be said to be a person suffering from mental infirmity and as one entitled to protection of Order XXXII Rule 15 of CPC, is the question to be considered. It held mental infirmity is not mental disorder. It is not mental illness or the particular context of Order XXXII Rule 15 of CPC, weakness of intellect to the extent of making a person incapable of protecting his interests in the
litigation. Thus, a person who is not of unsound mind may, yet be a person who is mentally infirm. Thus, entitling him to the protection under Order XXXII Rule 15 of CPC. Idiocy or unsoundness of mind indicates an abnormal state of mind, whereas, mental infirmity only indicates weakness of mental strength. The proviso applies to dull-witted persons or persons
with lesser degree of intellectual competence. A person who is not
adjudged as one unsound mind under the Lunacy Act is still entitled to the protection under Order XXXII Rule 15 of CPC, if the Court is satisfied that the person before the Court is incapable of protecting his interests, either by reason of unsoundness of mind or intellectual incompetence due to mental infirmity. Mental infirmity may even be due to physical defects, if such defects render a person incapable of receiving any communication or communicating his wishes or thoughts to others. The scope of enquiry under Order XXXII Rule 15 of CPC is the assessment of the capability of a person either of unsound mind or suffering from any mental infirmity like deafness or dumbness, as to whether such defects or infirmities or weaknesses would render a person incapable of communicating his views, wishes or thoughts. {Para 20}
21. It is further held that the legal position is that mental infirmity in the context of Order XXXII Rule 15 of CPC is not mental person able of protecting his interests, is sufficient to unfold the protective umbrella under Order XXXII Rule 15 of CPC. Such infirmity can also be caused by physical defects like deafness or dumbness, whereby a person is made incapable of communicating his wishes, views or thoughts to others who are not acquainted with him. If such a person is before the Court in a suit or proceedings either as plaintiff or defendant, the Court has a jurisdictional
obligation to conduct an enquiry as to whether the person is capable of protecting his own interests. If in the judicial enquiry, if necessary and if required, conducted with the assistance of an expert, it is found that such person is incapable of protecting his interests in the suit or proceedings before the Court, the Court has an obligation to appoint a next friend for such person, and if the Court on the other hand finds that the person is otherwise capable of protecting his interests without a next friend, the
Court shall remove the next friend if already available and permit the person, who is alleged to be of unsound mind or suffering from mental infirmity, to conduct the litigation himself. It is also further held a decree passed against a minor without appointment of guardian is a nullity. The same principle would apply as far as a person suffering from unsoundness of mind or mental infirmity is referred to in Order XXXII Rule 15 is concerned.
22. In view of the above said authoritative principle of law, as
discussed supra, the Court below erred in holding that the petitioner herein has not filed medical reports. The Court below did not consider the specific pleading that the person who sought to be appointed as next friend specifically contended that he has no adverse interest to that of plaintiff.Therefore, according to this Court, the petitioner herein aged about 75 years, suffering with various old age ailments including paralysis and hearing problem supported by medical evidence, is entitled for appointment of next friend. Therefore, according to this Court, the Court below erroneously dismissed the application vide I.A.No.514 of 2019 filed by the petitioner vide impugned order dated 26.03.2021 and therefore, the impugned order is liable to be set aside and accordingly set aside.
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
THE HON’BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.1389 OF 2021
M.Sudhakar @ M.Sudhakar Rao Vs. Peerajee @ Reddy
Delivered on: 17-11-2021
This Civil Revision Petition, under Article 227 of the Constitution of
India, is filed challenging the Order, dated 26.03.2021, passed in
I.A.No.514 of 2019 in O.S.No.64 of 2014, by the Senior Civil Judge,
Nirmal, wherein the said application was dismissed.
2. Heard Sri Ganta Ramakrishna, learned counsel for the petitioner
and Sri Mahesh Raje, learned counsel for the respondent. Perused the
record.
3-a. The petitioner herein had filed the above suit against the
respondent herein seeking declaration of title and recovery of possession
and for rectification of the entries in the revenue records. The said suit was
posted for evidence of the petitioner herein. At this stage, the petitioner
herein had filed an application vide I.A.No.514 of 2019 under Order
XXXII Rule 15 read with Section 151 of the Code of Civil Procedure, 1908
( for short, ‘the CPC’) in the said suit, seeking to appoint Sri M.Satish
Kumar, his son, as his next friend to prosecute the said suit. The petitioner
herein had filed the said application on the ground that his health has been
effected badly. Once he was having stroke in the brain and as a result of it,
partially effected with paralysis. Therefore, he is unable to hear even after
fixing ear aid and even talk properly. He was undergoing treatment for the
said infirmities. In view of the said infirmities, it is impossible to him to
represent the case for which he sought to appoint his son as his next friend.
3-b. The respondent herein filed counter denying all the allegations
made in the plaint and contended that the provisions under Order XXXII
Rule 15 of CPC does not apply to the present case, since the petitioner is
not a mentally infirm person or a lunatic. Since last six years, he has been
prosecuting the suit. He has also filed examination in chief in the month of
August, 2019. The petitioner has also filed rejoinder along with an
interlocutory application to seek permission for filing the rejoinder. The
petitioner also filed an application vide I.A.No.369 of 2019 to amend the
schedule of the property on the ground that he noticed incorrect boundaries
while preparing an affidavit in lieu of examination in chief on 02.08.2019.
On 28.03.2019, the petitioner appointed his son as General Power of
Attorney and filed I.A.No.128 of 2019 under Rule 32 of the Civil Rules of
Practice, with his signatures at Nirmal. Thus the petitioner came down to
Nirmal to prepare all the above said application and signed at Nirmal. In
view of the said circumstances, the petitioner is hale and healthy and no
next friend needs to be appointed for him. The medical reports filed by the
petitioner are created for the purpose of the present case and he has filed
the present case intentionally to avoid his cross-examination.
3-c. The Court below vide order dated 26.03.2021 dismissed the said
application vide I.A.No.514 of 2019 by holding that the petitioner herein
has not filed any record to show that he is suffering with paralysis and he
has filed only certificates issued by Dr. K.Kishore Kumar, M.D., stating
that he is suffering with “Cerabro vascular accident”. The petitioner did
not file medical report in support of the said decease. The case of the
petitioner is not that he is deaf and dumb and there is no evidence to show
that he is suffering with slight paralysis. The plaintiff filed his suit through
GPA who was examined as P.W.1 and the petitioner herein seeking to
appoint the same person as his next friend. There is no evidence of any
unsoundness of mind, or he is not suffering with any physical disabilities
affecting his cognitive skills. With the said findings, the Court below has
dismissed the said application. Feeling aggrieved by the same, the
petitioner herein has filed the present Revision.
4. Learned counsel for the petitioner, referring to the list of
documents filed along with the said I.A.No.514 of 2019, would submit that
the petitioner herein had filed medical reports, medical prescriptions and
certificate issued by the Doctors. The Court below did not consider the
same and erroneously dismissed the said application stating that the
petitioner herein has not filed medical reports. Referring to the said medical
reports, learned counsel for the petitioner would submit that the petitioner
herein is aged about 75 years and he is not in a position to hear, despite
fixing the ear aid, unable to talk properly due to paralytic stroke.
Therefore, the petitioner herein is incapable to pursue his case. The Court
below without considering the said facts erroneously dismissed the said
application filed by the petitioner herein. He has also placed reliance on the
decisions in Leelason Breweries Ltd. Vs. Bheemi Reddy
Lakshminarayana Reddy1 and Gyan Prakash Gupta Vs. Ahmad
Maqsood Naquvi2
1 2002(2)ALD 65
2 Laws (All) 2004 1056
5. On the other hand, Sri Mahesh Raje, learned counsel appearing for
the respondent, would submit that the Court below has rightly dismissed
the application filed by the petitioner herein since the petitioner herein has
not filed any medical reports to show that he is suffering with paralysis and
also to support the certificate issued by Doctor K.Kishore Kumar. He has
filed affidavit in lieu of his examination in chief in the month of August,
2019 and he has also filed rejoinder apart from filing an application to
amend schedule of property on the ground that he has noticed incorrect
boundaries while preparing affidavit in lieu of examination in chief. Within
one month thereafter, he has filed present application seeking to appoint his
son as next friend. Therefore, the petitioner herein has filed the said
application in order to avoid cross-examination and to delay adjudication of
the present proceedings. According to him, the Court below has conducted
enquiry properly and rightly dismissed the application filed by the
petitioner herein. With the said submissions, he sought to dismiss the
present Revision.
6. In view of the said rival submissions, the points that arise for
consideration before this Court are:-
1) Whether the petitioner is suffering from mental infirmities
and by the reason of which, he is incapable of protecting his
interest in the present suit?
2) If that is so, whether the order, dated 26.03.2021, passed in
I.A.No.514 of 2019 in O.S.No.64 of 2014, by the Senior Civil
Judge, Nirmal, is liable to set aside?
3) To what result?
Points 1 and 2
7. It is not in dispute that the petitioner herein had filed the above
said suit vide O.S.No.64 of 2019 seeking declaration of title, recovery of
possession and for rectification of entries. It is also not in dispute that the
petitioner herein is aged about 75 years. The said suit is posted for
petitioner’s evidence. At that stage, the petitioner herein had filed the
above said application vide I.A.No.1514 of 2019 in O.S.No.64 of 2019
under Order XXXII Rule 15 CPC, seeking to appoint his son as next friend
on the ground that due to old age, his health has been effected badly, once
he was having stroke in the brain as a result of which, partially effected
with paralysis and therefore he is unable to appear even after fixing the
hearing aid and he is also unable to talk properly and he is undergoing
treatment for the said effect and in view of the said infirmities, it is
impossible to him, to represent the case.
8. In support of his contentions, he has filed a copy of original
C.T.Scan of brain plain study, dated 25.09.1996 issued by N.Sanjeev
Kumar, Radiologist, Tesla Diagnostics; report dated 19.01.2015 issued by
A.Arunareddy, Audiologist, Karimnagar Speech and Hearing centre;
medical prescription, dated 19.01.2015; the prescription dated 19.01.2015,
issued by Dr.K.Vamsheekrishna Rao, Saanvi ENT Hospital; the report
dated 07.08.2019 issued by Dr.Ch. Ramana Chary, Keshava
E.N.T.Hopsital, Karimnagar, and the certificate, dated 14.10.2019 issued
by Dr.K.Kishore Kumar, M.D. A perusal of the list of documents filed by
the petitioner along with the present Revision would reveal the said facts.
11. In the certificate, dated 14.10.2019, it is specifically mentioned
that the case of the petitioner is known as “Cerebro vascular accident”. In
the certificate, dated 07.08.2019, it is specifically mentioned that the
petitioner has been diagnosed with ‘Bilateral Sensorineural Hearing Loss’.
In the certificate, dated 19.01.2015, it is specifically mentioned that the
petitioner herein is suffering with hearing problem. In the certificate issued
by the Tesla Diagnostics, it is specifically mentioned that the CT features
of small irregular hypodense area involving the corona radiate on right
side suggestive of infarct. In the certificate issued by the Nizam’s Institute
of Medical Sciences, Panjagutta, Hyderabad, dated 25.09.1996, it is
specifically mentioned as follows:-
“IMPRESSION:-Atheromatous plaques of bilateral carotid arteries
with 30-35% luminal narrowing without disturbance of flow
velocities.
-Normal bilateral vertebral arteries.
-Brady cardia with reduced systolic peeks and prolonged diastolic
phases.”
In the certificate issued by A.Aruna Reddy, dated 19.01.2015, Karimnagar
Speech and Hearing Centre, it is specifically mentioned that there is
reduction in hearing sensitivity since last two years. As stated above, the
petitioner herein has filed the said medical reports along with the above
said application. Though the Court below in the impugned order at
paragraph No.7 mentioned about the filing of medical reports C.T.Sacn of
brain 1996, ear report and prescription of ENT of 2015 and a certificate
issued by a Doctor stating that the plaintiff case is of ‘Cerebro Vascular
Accident”, dismissed the said application by mentioning in paragraph No.8
that the petitioner has not filed any record of his paralysis. The certificate
filed was issued by the Doctor stating that he is suffering with “Cerebro
Vascular Accident” issued by Sri K.Kishore Kumar, M.D. and medical
reports of the same. Thus, there are contradictory findings of the Court
below in the impugned order.
12. At one stage, the Court below stated that the petitioner has not
filed medical reports and in the very same order, there is mention about the
petitioner filing of the medical reports which is contrary to the record. As
discussed supra, the petitioner herein is at the age of 75 years. The
petitioner herein has already filed an application under Rule 32 of the Civil
Rules of Practice vide I.A.No.128 of 2019 appointing his son as G.P.A.
holder and the same was allowed. Now the petitioner herein has filed the
present application seeking to appoint his son as next friend but the Court
below dismissed the said application. Therefore, according to this Court,
the Court below has not conducted an enquiry under Order XXXII Rule 15
of the CPC properly.
13. It is apt to refer Order XXXII Rule 15 of CPC:-
“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, or protecting their interest when suing or being
sued.”
14. The above said provision would clearly envisages to kind of
persons it applies to and the circumstances under which the Court has to
appoint next friend to protect their interest while suing or being sued.
15. It is the specific case of the petitioner herein that he is incapable
of protecting his interest in O.S.No.64 of 2015 by the reason of his mental
infirmity. According to him, his case falls under second category of Order
XXXII Rule 15 of CPC. In view of the same, it is for the Court below to
consider the case of the petitioner whether it falls under second category of
Order XXXII Rule 15 of CPC. Without considering the same, the Court
below has dismissed the application filed by the petitioner herein vide
impugned order.
16. It is relevant to note that Delhi High Court had an occasion to
deal with the scope and ambit of Order XXXII Rule 15 of CPC in Radhika
Kapoor Vs. State3 wherein it is held that the respondent therein had
suffered a serious road accident in the year 1999, which had caused severe
damage to his brain and on the said ground, he sought to appoint a next
friend under Order XXXII Rule 15 of the CPC. The Delhi High Court
referring to definition of word ‘infirmity’ and also several decisions of the
Apex Court and various High Courts and also the principles relating to the
scope of enquiry under Order XXXII CPC and the duty cast on the court to
conduct an inquiry to assess ability of a party stated to be suffering from
mental infirmity including unsound mind have been laid down.
17. Paragraph No.5 of the said decision is relevant and it is extracted
below:-
To understand as to who can be termed mentally infirm, a
reference to the definition of the word ‘infirm’ which finds
3 2016 159 (DRJ) 437=MANU/DE/2311/2016
mention in several dictionaries is apposite. In Collins, the word
‘infirm’ has been defined as ‘weak or ill and usually old’. The
Concise Oxford Dictionary refers to the word ‘infirm’ as ‘a
person who is not physically strong, especially due to age’. In
Black’s Law Dictionary, the word ‘infirm’ has been defined as
‘weak, feeble, lacking moral character or weak of health’. In
Webster’s New World Law Dictionary, the word, ‘infirm’ has
been defined as ‘Debility caused by ill health or advanced age”.
The American Heritage Dictionary of the English Language
defines ‘infirmity’ as ‘the condition of being infirm, often as
associated with old age; weakness or frailty; the infirmity
brought on by the disease.”
18. Referring to the same, it was held that the nature of formal
enquiry contemplated under Order XXXII Rule 15 of CPC is not of a kind
that is required to be conducted under the provisions of the Lunacy Act and
the Court is well empowered to pass an order on an application filed under
Order XXXII Rules 3 and 15 of CPC upon being satisfied about the party’s
mental competence. The rigorous of enquiry under the aforesaid provisions
is therefore not so strict as required under the Lunacy Act for the reason
that a complete distinction that can be drawn between a person who is
mentally unsound, vis-à-vis one who is incapacitated on account of mental
infirmity, which is a condition of a lesser degree. Merely because a person
may be suffering from a low intellectual quotient (IQ), may not be a ground
to treat him as being of unsound mind. But at the same time, upon enquiry,
the court can arrive at a conclusion that he would not be capable of
protecting his interest in a litigation, which is the underlying purpose of the
aforesaid provision.
19. The Delhi High Court further referred decision in B.K.Khanna
Vs. K.N.Khanna-ILR(1997) 2 Delhi 492, wherein it is held that while
interpreting the provision of Order XXXII rule 15 CPC, it was observed
that the said provisions “cast a mandatory duty on the Court to take steps to
ensure proper representation for such persons so as to ensure that their
interest in relation to the proceedings are fully protected. These provisions
are a legislative recognition of the well-known principle that the State, as
indeed, the Court, which is a part of the judicial wing of the State, is in
locus parents to its citizens, who are either minors, or are incapable of
protecting their interests in judicial proceedings by reasons of unsoundness
of mind or mental infirmity.” It was therein also held that the cardinal
principle of inquiry required to be conducted by a Court under Order
XXXII Rule 15 of CPC, is only after arriving at the conclusion that a
person is mentally incapable or unable to prosecute/defend the case, would
the Court proceed to appoint a fit person as his guardian ad litem. While
doing so, the Court must be mindful of the fact that such a person does not
have any interest that is adverse to the applicant. With the said findings,
the Delhi High Court, on examination of the facts of the said case, held that
the person who sought appointment of a next friend appears to be a person
of week intellect, ineffectual and incapable of looking after his interests
and affairs and allowed the said petition to appoint next friend.
20. In Raveendran Vs. Sobana4, Kerala High Court had an occasion
to deal with the issue whether a deaf and dumb person can be said to be a
4 AIR 2008 Ker 145= MANU/KE/0754/2007
person suffering from mental infirmity and as one entitled to protection of
Order XXXII Rule 15 of CPC, is the question to be considered. It held
mental infirmity is not mental disorder. It is not mental illness or the
particular context of Order XXXII Rule 15 of CPC, weakness of intellect to
the extent of making a person incapable of protecting his interests in the
litigation. Thus, a person who is not of unsound mind may, yet be a person
who is mentally infirm. Thus, entitling him to the protection under Order
XXXII Rule 15 of CPC. Idiocy or unsoundness of mind indicates an
abnormal state of mind, whereas, mental infirmity only indicates weakness
of mental strength. The proviso applies to dull-witted persons or persons
with lesser degree of intellectual competence. A person who is not
adjudged as one unsound mind under the Lunacy Act is still entitled to the
protection under Order XXXII Rule 15 of CPC, if the Court is satisfied that
the person before the Court is incapable of protecting his interests, either
by reason of unsoundness of mind or intellectual incompetence due to
mental infirmity. Mental infirmity may even be due to physical defects, if
such defects render a person incapable of receiving any communication or
communicating his wishes or thoughts to others. The scope of enquiry
under Order XXXII Rule 15 of CPC is the assessment of the capability of a
person either of unsound mind or suffering from any mental infirmity like
deafness or dumbness, as to whether such defects or infirmities or
weaknesses would render a person incapable of communicating his views,
wishes or thoughts.
21. It is further held that the legal position is that mental infirmity in
the context of Order XXXII Rule 15 of CPC is not mental person able of protecting his interests, is sufficient to unfold the protective umbrella under
Order XXXII Rule 15 of CPC. Such infirmity can also be caused by
physical defects like deafness or dumbness, whereby a person is made
incapable of communicating his wishes, views or thoughts to others who
are not acquainted with him. If such a person is before the Court in a suit or
proceedings either as plaintiff or defendant, the Court has a jurisdictional
obligation to conduct an enquiry as to whether the person is capable of
protecting his own interests. If in the judicial enquiry, if necessary and if
required, conducted with the assistance of an expert, it is found that such
person is incapable of protecting his interests in the suit or proceedings
before the Court, the Court has an obligation to appoint a next friend for
such person, and if the Court on the other hand finds that the person is
otherwise capable of protecting his interests without a next friend, the
Court shall remove the next friend if already available and permit the
person, who is alleged to be of unsound mind or suffering from mental
infirmity, to conduct the litigation himself. It is also further held a decree
passed against a minor without appointment of guardian is a nullity. The
same principle would apply as far as a person suffering from unsoundness
of mind or mental infirmity is referred to in Order XXXII Rule 15 is
concerned.
22. In view of the above said authoritative principle of law, as
discussed supra, the Court below erred in holding that the petitioner herein
has not filed medical reports. The Court below did not consider the specific
pleading that the person who sought to be appointed as next friend
specifically contended that he has no adverse interest to that of plaintiff.
Therefore, according to this Court, the petitioner herein aged about 75
years, suffering with various old age ailments including paralysis and
hearing problem supported by medical evidence, is entitled for appointment
of next friend. Therefore, according to this Court, the Court below
erroneously dismissed the application vide I.A.No.514 of 2019 filed by the
petitioner vide impugned order dated 26.03.2021 and therefore, the
impugned order is liable to be set aside and accordingly set aside.
Point No.3
23. In the result, the Civil Revision Petition is allowed setting aside
the order dated 26.03.2021, passed in I.A.No.514 of 2019 in O.S.No.64 of
2014, by the Senior Civil Judge, Nirmal and the said I.A.No.514 of 2019 is
allowed appointing Sri M.Satish Kumar, son of the petitioner/plaintiff, as
his next friend to prosecute the suit vide O.S.No.64 of 2014. There is no
order as to costs.
24. As a sequel, miscellaneous petitions, if any, pending in this
Revision, shall stand dismissed.
_________________
K. LAKSHMAN, J
Date: 17th November,2021.
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