Rule 8 of the Code of Civil Procedure, one person may sue or defend
on behalf of all in the same interest with the permission of the Court.
This is why even in these cases, the plaint is accompanied by an
application praying for permission under Order 1 Rule 8 CPC. If Court
grants permission then and then only a suit in the representative
capacity becomes maintainable. Even under the provision of Order VII
Rule 1, the particulars to be contained in a plaint are laid down. In
Clause-(d) of the said rule it is provided that whether the plaintiff or
the defendant is a minor or a person of unsound mind, the statement
to that effect must be given in the plaint. This being a necessary
requirement, even a failure to comply with the same may result in
rejection of plaint under Order VII Rule 11 of the CPC. In the case in
hand, the plaintiff has been described to be a person of unsound
mind by one Nabenendu Bikash Deb. Said Nabendu Bikash Deb has
described himself to be a next kin of the plaintiff and in that capacity
presented the plaint and proceeded with the trial. Reverting to Rule
15 of Order XXXII it appears that it is the Court who is to adjudge a
party to be incapable by reason of any mental infirmity. So holding
someone incapable by mental infirmity is the task given to a Court
and it cannot be taken for granted by merely describing someone as
mentally unsound by a self proclaimed next kin. Rule 3 of the same
order indicates that in case where a defendant is a minor, the Court
shall not only specify status of minority of such defendant but also
Court shall also appoint a proper person to be the guardian ad litem.
This is because under Clause (3) of the said Rule, Court is also satisfy
itself as to whether a person is fit to be so appointed as guardian of
the minor defendant. If it is a case that a defendant is of unsound
mind, by operation of Rule 15, the Court would have been saddled
with two responsibilities, first to hold enquiry and to determine as to
whether the defendant is really a person of unsound mind and then
to make appointment of guardian ad litem on being satisfied that
such a person is fit to be so appointed. Qualification for being a close
friend of the plaintiff or of being appointed as guardian ad litem is
laid down in Rule 4 of the Order XXXII. This, interalia, requires that
such person does not have any interest adverse to the minor or the
person of unsound mind, as the case may be. The first part of Rule 4
relates to plaintiff and so Rule 15 has to be understood keeping in
view the provision of Rule 4 of the CPC. This means that once a plaint
is presented to a Court describing the plaintiff to be a person of
unsound mind and such plaint is presented by a person claiming to be
a next kin of the plaintiff, the Court is duty bound to ascertain as to
whether the plaintiff is really a person of unsound mind, and if so, to
say as to whether the person who has approached this Court claiming
to be a next friend of the plaintiff is qualified in terms of Rule 4 of
Order XXXII, to be next friend of such plaintiff. Once the provision of
Order XXXII is viewed from such angle there is no doubt that this
provision is not a merely procedural one but it has essential judicial
components also. Apart from using the word ‘shall’ in Order XXXII
Rule 15, the judicial exercise of the Court required by the provision
placed this rule at a higher pedestal then a procedural provision. This
Rule, therefore, is mandatory and failure to comply with the same
would make the plaint unentertainable and consequently the suit
would become not maintainable.
In the case in hand, Nabendu Bikash Deb is a self styled
next friend of the plaintiff who did not even urge the Court to make a
necessary adjudication as to the mental capability of the plaintiff
before proceeding to entitlement of the suit and the Court also
proceeded at the mere ipsi dixit of Nabendu Bikash Deb who has no
jural connection with the property. In that view of the matter the
learned lower appellate Court has not committed any error in holding
that the suit itself was defective and not maintainable for non-
compliance of the provision of Order XXXII Rule 15 CPC.
IN THE GAUHATI HIGH COURT
RSA 98/2003
On the death of appellant No. 1, Sri Binoy Bhusan Choudhury,
Vs
Smti Rekha Rani Deb
BEFORE
HON’BLE Mr. JUSTICE N. CHAUDHURY
Date of delivery of Judgment :: 06.02.2014
Citation; AIR 2014 Gauhati 50
This second appeal is preferred against the lower appellate
judgment and decree dated 14.02.2003 passed by the learned District
Judge, Cachar at Silchar in Title Appeal No. 5 of 1998 whereby the
trial Court’s judgment and decree dated 18.05.1998 passed by the
learned Civil Judge (Senior Division No. 2) Silchar in Title Suit No.
90/1988 was set aside and reversed thereby dismissing the suit of the
plaintiffs.
2.
One Nabendu Bikash Deb claiming to be next friend of
the plaintiff, Bidhan Bhusan Choudhury and describing said Bidhan
Bhushan Choudhury as an insane filed Title Suit on his behalf praying
for a decree for declaration of right, title and interest and permission
of possession over a plot of land measuring 15 kathas 1 chatak 17
gondas under Dag Nos. 370 of second R.S. Patta No. 120 as well as
Dag No. 369 of second R.S. Patta No. 199 of Mouja Ambicapur Part IX
of Silchar Town and also for cancellation of a registered sale deed No.
3518 dated 18.09.1987 and a registered Power of Attorney No. 277
dated 26.07.1987. The case of the plaintiff was that plaintiff originally
owned and possessed about 2 bighas 9 kathas 9 chataks and 8 gondas
of land in the aforesaid 2 dags by way of purchase out of which he
sold land to one Chhaya Chatterjee and one Sanjoy Chatterjee on
various days. Thereafter he retained only the suit land measuring
kathas 1 chatak 17 gondas of land. According to the plaintiff, the
defendant No. 2 is a resident of the opposite plot of the suit land and
because of living in the neighbourhood became a friend of the
plaintiff. Plaintiff became insane since 1985 and taking this
opportunity defendant No. 2 initially got a registered Power of
Attorney executed by him on 26.07.1987 and subsequently on the
basis of the said Power of Attorney got the suit land sold in favour of
his wife, the defendant No. 1 herein. According to the plaintiff,
permission of Silchar Development Authority was fraudulently
obtained for such sale and there was no permission from the
Collector. The plaintiff did not receive any money against aforesaid
sale in favour of the defendant No. 1 and never parted with the
possession of the land. The plaintiff claimed to be alone in possession
of the suit land. Subsequently, the relations and a next friend of the
plaintiff came to know about the execution of the Power of Attorney
and the consequent sale deed referred to above and thereafter
obtained certified copy of the same on 09.08.1988. Upon discovery of
these documents it was found that defendant No. 2 played fraud on
the plaintiff for obtaining these documents. On these facts, the plaint
was presented by aforesaid Nabendu Bikash Deb on 16.09.1988. In
the aforesaid suit the defendant No. 1, being the predecessor and
defendant No. 2, being the constituted attorney was impleaded as
defendant Nos. 1 & 2 respectively.
3.
On being summoned the aforesaid two defendants
submitted written statement and specifically denied the plea of the
plaintiff that plaintiff was insane after 1985, that its power of
attorney was duly executed and registered by the plaintiff himself,
that the plaintiff opened Savings Bank Account with the United
Commercial Bank on 22.02.1986 by SB Account No.3379 and went on
operating the said account from time to time. The defendants further
disclosed that having obtained possession of the land pursuant to
purchase on 18.09.1987 the land was subsequently sold to one
Kusum Rani Das on 09.08.1988 who has been possessing the land
pursuant to purchase. In its written statement the defendants took
the plea that the suit is not maintainable in present form and that it is
also bad for non-joinder of Kusum Rani Das. After filing of this written
statement, plaintiff brought the plaint amended and made aforesaid
Kusum Rani Das impleaded as defendant No. 3 in the case vide order
dated 12.05.1989. Thereafter summon was issued to the newly
impleaded defendant No. 3 (Kusum Rani Das) who also submitted
written statement and denied the case of the plaintiff. She claimed to
have purchased the land on 09.08.1988 and took possession thereof.
She further stated that she has constructed the house in the suit land
and was possessing the same.
4.
On the basis of the aforesaid rival contention of the
parties, the learned trial Court initially framed the following five
issues:-
A. Is there any cause of action for the suit?
5
B. Is the suit maintainable in its present form?
C. Whether the Power of Attorney is false and fraudulent and
whether liable to cancellation?
D. Whether the plaintiff has got any right, title and interest
over the suit land?
E. To what relief the plaintiff is entitled?
5.
Thereafter another additional issue was framed in the
case and the said additional issue is quoted below:
Additional issue
“Whether the original plaintiff, Bidhan Bhusan Choudhury was
mentally fit to execute any deed in the suit?”
6.
It needs to be mentioned herein that during the
pendency of the suit the plaintiff died on 05.07.1994 as a bachelor
and thereupon his brother and sister being the class II legal heirs
were impleaded as plaintiffs.
7.
In course of trial, plaintiffs have examined as many as 4
witnesses including two doctors, as P/W 2 & 3 and the defendants
examined as many as 3 witnesses including the Sub-Registrar before
whom the questioned Power of Attorney was registered. The learned
trial Court after consideration of the deposition of the witnesses and
on perusal of the materials available on record arrived at the finding
that the plaintiff was of unsound mind in relevant time and as such
institution of the suit by his next friend became necessary. The
learned trial Court came to further findings that since there is no
dispute as to acquisition of title to the land in question by the
plaintiff. Admittedly plaintiff had title to the land but since he was of
unsound mind on the day the alleged deed of Power of Attorney and
registered sale deed referred to above were executed, said deeds
were invalid and inoperative. With all these basic findings, the
learned trial Court decreed the suit in entirety. Thus right, title and
interest of the plaintiff over the suit land was declared, his possession
was also confirmed and the registered Power of Attorney and
registered sale deed dated 18.09.1987 were cancelled.
8.
Aggrieved by the aforesaid judgment and decree of the
learned trial Court, the defendants preferred Title Appeal No. 5 of
1998 in the Court of learned District Judge, Cachar at Silchar. After
the appeal was admitted and records were called for the appellants
filed application under Order XLI Rule 27 of the Code of Civil
Procedure for leading evidence at the appellate stage and such prayer
being allowed some documents were brought on record and
witnesses were examined. Special Registrar, Amalendu Bhattacharjee
was examined as DW1 at the appellate stage who stated that the
executants of the Power of Attorney (Ext.-C) had executed the
documents in his presence and Ext.-C(10) and C(11) are his signature
and thumb impression respectively. He also proved Ext.-C(12) as his
endorsement and Ext.C(13) as his signature and date. This witness
also proved that Ext.-D, sale deed was executed and registered by
him. In course of cross-examination the D-1 specifically stated that
plaintiff, Bidhan Bhushan Choudury being executants of the Power of
Attorney admitted the execution of the deed in front of him and such
admission of execution is evidenced by his endorsement at Ext.-C(12).
His cross-examination does not show that any suggestion was made
to him questioning the identity of the plaintiff at the time of
registration. DW-2 (Sumit Kumar Deb) a Senior Branch Manager of
the UCO Bank, proved Ext.-A1, B1 and C1 which are withdrawal slips
pertaining to the Savings Bank Account of the plaintiff. DW3, Sashi
Kanta Dutta is a U.D. Assistant of Silchar Municipal Board and he was
also examined at the same time to prove Ext.-D and Ext.-E showing
mutation of the name of the purchaser of suit land from the plaintiff.
9.
The PW1 is Bivash Chandra Choudhury, a brother of the
original plaintiff. PW2 is one Dr. Mrinal Kanta Dutta Choudhury who
issued Ext.-8 certificate and deposed that plaintiff was suffering from
organic brain disorder since 1985. He also stated that plaintiff was
treated by a Psychiatrist. From Ext.-8, Medical Certificate it appears
that PW2 is an MBBS and has undergone training on child diseases.
He is not a Psychiatrist. PW3 is a Psychiatrist. He was Professor in the
Department of Psychiatry in Silchar Medical College. According to
him, he examined the plaintiff on 28.09.1993 and also referred him to
NIMHANS at Bangalore. Ext.-7 is the prescription given by him. In
course of his cross-examination he admitted that he did not recall to
have seen the plaintiff prior to 28.09.1993 and that he could not
locate the exact pathology of the disease suffered by the plaintiff as
on 28.09.1993 and that is why he advised the patient for further
investigation. Thus from the evidences of PW2 & 3, it is not possible
to arrive at a positive findings that as on the date of execution of the
Power of Attorney the plaintiff was of unsound mind. PW4 is
Nabendu Bikash Deb who presented the plaint on behalf of the
plaintiff. On behalf of defendants there are two sets of evidences. A
set of 3 persons as DWs 1, 2 & 3 were examined at the trial stage and
they are one Merab Ali Laskar, Nirendra Kumar Dey @ Anendu Dey
(defendant No. 2) and one Hari Prada Das as DW3. This Hari Prada
Das was attesting witness of Ext.-C, (Power of Attorney) and he had
identified the plaintiff in front of the said Registrar. The second set of
DWs 1, 2 & 3 were examined at appellate stage and as discussed
above they were Amalendu Bhattacharjee (DW1) the Sub-Registrar,
Sumit Kumar Deb (Senior Branch Manager, UCO Bank) and Sashi
Kanta Dutta (Upper Division Assistant of Silchar Municipal Board). So
really there are as many as 6 witnesses from the side of the
defendants out of which 3 were examined at trial stage and 3 at
appellate stage.
10.
The learned Lower Appellate Court after consideration of
all these depositions and exhibits noticed that the suit was filed by
one Nabendu Bikash Deb who claimed to be next kin of plaintiff and
described the plaintiff as a person of unsound mind. The suit itself
was incompetent in view of the fact that there was no inquiry as
contemplated under the provisions of Order XXXII of the Code of Civil
Procedure. If the suit itself was incompetent as to the date of its
institution the decree passed therein could not have been
maintainable and/or sustainable. The learned District Judge even on
merit found that unsoundness of mind of the plaintiff could not be
proved on merit. Thus not only on the point of maintainability but
also on the point of merit the suit of the plaintiff was found to be
incompetent. Consequently the learned District Judge allowed the
appeal, set aside the judgment of the learned trial Court and
dismissed the suit of the plaintiff. The said judgment was passed by
learned Appellate Court on 14.02.2003 and it is this judgment which
has been brought under challenge in the present second appeal. This
Court while admitting the second appeal on 04.09.2003 framed the
following three substantial questions of law:
1. Whether the learned lower Appellate Court was justified in
dismissing the suit of the plaintiff (a person of unsound mind) filed by
the next fried on the ground of omission to hold an enquiry in
compliance of the provisions of Order XXXII Rule 15 of the Code of
Civil Procedure inasmuch as non-holding of any enquiry at the initial
stage is only an irregularity merely touching the procedure and does
not render the suit defective.
2. Whether, the execution of the power of attorney not having
been seen by anybody and as such not proved in accordance with
law, the learned lower Appellate Court was justified in drawing
presumptions under Section 85 of the Evidence Act and holding the
same to be a valid document.
3. Whether, in view of the clear finding of the learned trial
Court that the plaintiff was not mentally fit since 1985 to execute any
deed, the learned lower Appellate was justified in reversing that
finding on hyper technical approach.
11.
I have heard Mr. B. K. Purkayastha and Mr. P. Dutta,
learned counsel for the appellants and Mr. N. Dhar, learned counsel
for the respondents.
12.
Mr. B.K. Purkayastha placed reliance on two judgments,
one of this Court and one of Hon’ble Bombay High Court. In the case
of Jhabarmal Panda v. Bhagawati Prasad Kedia reported in AIR 1990
Gau 35, this Court found that defendant not having raised plea of
unsoundness of mind of the plaintiff in appropriate time there was no
inquiry by Court under Order XXXII Rule 15 of the Code of Civil
procedure and as such the ex-parte order passed by the learned trial
Court without holding any enquiry as to unsoundness of mind of the
plaintiff was not vitiated. This judgment was relied on by learned
counsel for the petitioner. To impress upon this Court that an inquiry
under Order XXXII Rule 15 of the Code of Civil Procedure is a mere
irregularity and it doesnot affect the suit, in the case of Gulabchand
Nanulal and others v. Fulchand Hirachand and another reported in
AIR 1959 Bom 232 it was held by a Division Bench of Bombay High
Court that decree passed in a suit instituted by or on behalf of a
minor without a next friend is incompetent.
13.
Per contra Mr. N. Dhar, learned counsel for the
respondents has placed reliance on the following judgments:
AIR 1988 Kerala 160 and AIR 1999 Allahabad 160 and No. 3
1999 8 SCC 29. In the case of Syed Hussain Baffakkii Thangal & Others
(AIR 1988 Kerala 160) the Kerala High Court relied on a Division Bench
judgment of Bombay High Court in the case of Somnath v. Tipanna
Ramchandra Jannu (Air 1973 Bom 276) and held that Court cannot
accept a plaint without conducting inquiry under Order XXXII Rule 15,
if the plaintiff is a person of unsound mind. The Kerala High Court has
held that such inquiry is a pre-requisite for the suit and thus failure to
hold inquiry is fatal. In the case of Khokha Rai v. XII Additional District
Judge, Allahabad & Others (AIR 1999 All 160) it was held by the
Allahabad High Court that only after production of material by the
applicant a Court is to hold inquiry under Order XXXII Rule 15. In that
case it was held that merely because a person files an application for
appointment of guardian, Court is not obliged to appoint a guardian
and to ask the applicant to produce evidence. Rather it is the duty of
the applicant to produce evidence and to insist on the learned Court
for holding such an inquiry. In the case of Raj Kumar v. Rameshchand
& Others reported in (1999) 8SCC 29 the question as to whether a
suit without holding such an inquiry is competent, came-up for
consideration. Emphasizing on inquiry under Section 50 of the Mental
Health Act, 1987, the Hon’ble Supreme Court found that in the case
in hand there was an application for holding such inquisition in regard
to mental condition of the plaintiff and pursuant to such application
guardian was appointed. On the basis of the aforesaid judgments Mr.
N. Dhar would insist this Court to hold a view that in a suit instituted
on behalf of a person of unsound mind, an inquiry under Order XXXII
Rule 15 read with Rule 3 of the Code of Civil Procedure is a condition
precedent and in the absence of such an inquiry Court does not have
jurisdiction to entertain a suit.
14.
On the basis of the aforesaid rival contentions put
forward by the learned counsel for the parties, the substantial
question of law framed by this Court are required to be decided. The
first substantial question of law deals with maintainability of a suit in
view of failure on the part of the learned trial Court to hold inquiry
under Order XXXII Rule 15 of the Code of Civil Procedure. Order XXXII
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. Rule 2 of the same Order is the default clause for Rule 1.
Rule 2 empowers a Court to take a plaint off the file. This is because
in case when a suit is instituted by a next friend he may be required
to furnish security on being asked by the Court under Rule 2A. By
Rule 15 of Order XXXII of the provisions of Rules 1 to 14 (except Rule
2A) have been made applicable for a parity of unsound mind. Rule 15
of Order XXXII is quoted below:
“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
or being sued.”
15.
It would appear from a perusal of the Rule 15 that there
are two parts in the rule. The first part deals with persons who have
already been adjudged as persons of unsound mind and the second
part deals with the persons who are not so adjudged but if enquiry is
held by the Court to which the plaint is presented the party may be
found to be of unsound mind. It may be noted in this connection that
under Section 50 of the Mental Health Act, 1987 the District Judge
after holding enquiry may hold a person to be of unsound mind. Prior
to enactment of this Act there was a similar provision in the Lunacy
Act. Now the question arises if a person is of unsound mind and has
not been so adjudged as in the present case whether a suit instituted
in his name would be maintainable and competent unless and until
unsoundness of mind of plaintiff is proved and a next friend
appointed in compliance of Rule 4. To understand this question we
may take analogy. A suit against government or public officer is not
maintainable unless there is a prior notice under Section 80(1) of the
Code of Civil Procedure. A plaint may be presented accompanied by
an application under Section 80(2) CPC praying for leave to dispense
with requirement of notice and if Court for reasons to be recorded
grants leave then and then only the plaint can be admitted and
proceeded with for the purpose of trial to the next stage. So granting
of leave under Section 80(2) is a pre-requisite for entertaining a
plaint. Similarly, in a suit of representative character under Order I
Rule 8 of the Code of Civil Procedure, one person may sue or defend
on behalf of all in the same interest with the permission of the Court.
This is why even in these cases, the plaint is accompanied by an
13
application praying for permission under Order 1 Rule 8 CPC. If Court
grants permission then and then only a suit in the representative
capacity becomes maintainable. Even under the provision of Order VII
Rule 1, the particulars to be contained in a plaint are laid down. In
Clause-(d) of the said rule it is provided that whether the plaintiff or
the defendant is a minor or a person of unsound mind, the statement
to that effect must be given in the plaint. This being a necessary
requirement, even a failure to comply with the same may result in
rejection of plaint under Order VII Rule 11 of the CPC. In the case in
hand, the plaintiff has been described to be a person of unsound
mind by one Nabenendu Bikash Deb. Said Nabendu Bikash Deb has
described himself to be a next kin of the plaintiff and in that capacity
presented the plaint and proceeded with the trial. Reverting to Rule
15 of Order XXXII it appears that it is the Court who is to adjudge a
party to be incapable by reason of any mental infirmity. So holding
someone incapable by mental infirmity is the task given to a Court
and it cannot be taken for granted by merely describing someone as
mentally unsound by a self proclaimed next kin. Rule 3 of the same
order indicates that in case where a defendant is a minor, the Court
shall not only specify status of minority of such defendant but also
Court shall also appoint a proper person to be the guardian ad litem.
This is because under Clause (3) of the said Rule, Court is also satisfy
itself as to whether a person is fit to be so appointed as guardian of
the minor defendant. If it is a case that a defendant is of unsound
mind, by operation of Rule 15, the Court would have been saddled
with two responsibilities, first to hold enquiry and to determine as to
whether the defendant is really a person of unsound mind and then
to make appointment of guardian ad litem on being satisfied that
such a person is fit to be so appointed. Qualification for being a close
friend of the plaintiff or of being appointed as guardian ad litem is
laid down in Rule 4 of the Order XXXII. This, interalia, requires that
14
such person does not have any interest adverse to the minor or the
person of unsound mind, as the case may be. The first part of Rule 4
relates to plaintiff and so Rule 15 has to be understood keeping in
view the provision of Rule 4 of the CPC. This means that once a plaint
is presented to a Court describing the plaintiff to be a person of
unsound mind and such plaint is presented by a person claiming to be
a next kin of the plaintiff, the Court is duty bound to ascertain as to
whether the plaintiff is really a person of unsound mind, and if so, to
say as to whether the person who has approached this Court claiming
to be a next friend of the plaintiff is qualified in terms of Rule 4 of
Order XXXII, to be next friend of such plaintiff. Once the provision of
Order XXXII is viewed from such angle there is no doubt that this
provision is not a merely procedural one but it has essential judicial
components also. Apart from using the word ‘shall’ in Order XXXII
Rule 15, the judicial exercise of the Court required by the provision
placed this rule at a higher pedestal then a procedural provision. This
Rule, therefore, is mandatory and failure to comply with the same
would make the plaint unentertainable and consequently the suit
would become not maintainable.
16.
In the case in hand, Nabendu Bikash Deb is a self styled
next friend of the plaintiff who did not even urge the Court to make a
necessary adjudication as to the mental capability of the plaintiff
before proceeding to entitlement of the suit and the Court also
proceeded at the mere ipsi dixit of Nabendu Bikash Deb who has no
jural connection with the property. In that view of the matter the
learned lower appellate Court has not committed any error in holding
that the suit itself was defective and not maintainable for non-
compliance of the provision of Order XXXII Rule 15 CPC. The first
15
substantial question of law is accordingly decided against the
appellant and in favour of the respondents.
17.
Coming to the second and third substantial questions of
law it is to be held that once the suit of the plaintiff is found to be
non-maintainable the substantial questions No. 2 & 3 of law have
become redundant and irrelevant. Accordingly, there is no necessity
for deciding the subsequent two issues.
18.
Consequently there is no merit in the second appeal and
accordingly it is dismissed.
sds
JUDGE
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