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
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