Madras High Court
M.S. Nadar @ Subramaniya Nadar vs S. Saraswathi on 14 June, 1997
Equivalent citations: 1997 (2) CTC 132, (1997) IIMLJ 385,
1. This revision is directed against the order of the II Additional Subordinate Judge, Trichy dated, 9.8.1996 in I.A. No. 157 of 1996 in O.S. No. 216 of 1983.
2. The short facts of the case are as follows:- One AL. Shanmugam filed O.S.No. 216 of 1983 praying for partition of the suit property into two equal shares and allotment of one share to the plaintiff. The trial of the suit commenced and the said Shanmugam was examined as the plaintiff's witness. The chief examination was over and the petitioner's counsel cross examined the plaintiff. Several answers were also elicited from the witness. According to the petitioner, the witness was giving answers correctly to the questions put to him, but he took time for answering the questions. The Court also put questions to the witness which the witness answered. Some of the answers for the questions put in the cross examination were not in favour of the plaintiff's case. At that time the plaintiff's counsel stated that the witness is not answering the questions properly. The petitioner/defendant's counsel also agreed that the witness is taking too much of time to answer each question. The learned trial Judge immediately made an endorsement and in the counsel agreed to dispense with the examination of P.W.1, somebody on his behalf, may be examined. The case was adjourned to some other date. Taking advantage of the situation, the said Shanmugam set up his wife S. Saraswathi and filed an application in I.A. No. 157 of 1996 under Order 32, Rule 15, C.P.C. praying for appointment of a guardian to the said Shanmugam on the ground that the said Shanmugam is mentally not alright which happened during the pendency of the proceedings. The petitioner filed a counter for the above application and contended that the said application is not maintainable and the allegation that the said Shanmugam is mentally unsound is false. The learned trial judge however allowed the application filed by Mrs. S. Saraswathi and by order dated 9.8.1996 appointed her as the guardian of said AL. Shanmugam. Aggrieved by the same, the petitioner/defendant has preferred the above revision.
3. I have heard the arguments of Mr. K.S. Natarajan for the petitioner and Mr. K. Kannan for the respondent and also perused the entire pleadings and the order impugned in this revision.
4. It is contended by Mr. K.S. Natarajan that I.A. No. 157 of 1996 filed by the respondent is not maintainable in law. According to him, an application under Order 32, Rule 15, C.P.C. has to be filed only by the plaintiff when the suit was presented by him or by the defendant after receiving of summons. Admittedly, Shanmugam has been conducting the above case since 1983. He has sworn to several affidavits. He has been instructing his counsel for conducting the case and finally he has also chosen to examine himself as a witness and the Chief examination and part of the cross examination were over. At that time, it was found that the evidence given by him was not in his favour and he worked out a deliberate devise to get over his own evidence by filing the application for appointment of a guardian. According to the learned counsel for the petitioner, the lower court has failed to appreciate that merely because the said Shanmugam took more time for answering each question the same cannot amount to mental infirmity and that there is absolutely no averments even in the affidavit filed by the respondent herein (S. Saraswathi) to arrive at a conclusion that the said Shanmugam is of unsound mind or that he is suffering from mental infirmity. It is also further stated that the counsel for the petitioner never conceded that Shanmugam is of unsound mind and what was represented before the lower Court was that by delaying tactics the said Shanmugam is not answering the questions property. Therefore, it is contended by the learned counsel for the petitioner that the lower court ought to have at least referred the said Shanmugam for medical opinion with respect to hesitate of mind. Even in the absence of a medical opinion about the mental condition of the said Shanmugam, the lower Court has totally erred in passing the impugned order. In conclusion, Mr. Natarajan said that the petitioner has a prima facie valid case and ample chances of success in this revision and also in the suit as set out above, and that this application was filed by the respondent only to get over the evidence given by P.W.1 which is not 2favourable to the plaintiff. Such a course of action should never be encouraged by any court.
5. The suit O.S. No. 216 of 1983 was filed by AL. Shanmugam against the present petitioner herein, impleading him as the sole defendant for partition of the suit properties into two equal shares and allot one such share and for separate possession to the plaintiff, for directing the defendant to render a true and proper account with regard to the income derived from the properties, for directing the defendant to pay the past and future profits with interest till delivery of possession of the property to the plaintiff and for award of cost of the suit. The petitioner herein as defendant filed a written statement denying the claim of the respondent herein as false and fraudulent. According to the defendant, the respondent/plaintiff is not entitled to any relief. As already stated I.A. No. 157 of 1996 was filed by the respondent herein (S. Saraswathi W/o. AL. Shanmugam) to appoint her as guardian for the plaintiff AL. Shanmugam, who has become mentally infirm. It is useful to notice the averments made in paragraphs 1 to 3 of the said affidavit;
1. I am the wife of the plaintiff. My husband has filed this suit for partition.
2. The same is part heard and my husband was examined in part. Unfortunately due to sudden attack, my husband is unable to lead a normal life in the sense partially he has become mentally deranged. He could not understand questions and answer the same. In fact his behaviour in court also would reveal that he is not mentally alright.
3. Under those circumstances, no purpose will be served in continuing to examine him. In view of the fact that he is not alright mentally and he could not be examined further and this has happened during the pendency of the proceedings it has become necessary that I must be appointed as guardian for the plaintiff otherwise I will be put to much loss.
A counter-affidavit was filed by the petitioner herein (defendant) opposing the said application under Order 32 Rule, 15 and Section 151, CPC. In the counter-affidavit the petitioner has raised the question of jurisdiction of the lower court to appoint said Saraswathi as guardian for a person who is alleged to be mentally unsound. It is also stated that the insanity pleaded is to be established and to be certified by a qualified person as per the Mental Health Act, and then only the person who wants to be a guardian has to move the proper forum to get herself appointed as a guardian for the mentally ill person. It is also stated that the plaintiff Shanmugam is not suffering from any mental disorder, and therefore, it was prayed that the application should be dismissed as not maintainable unless and until the proper forum made an order for the guardianship of the person and property of the mentally ill person. The learned Subordinate Judge by his order dated 9.8.1996 allowed the application filed by the respondent herein and appointed her as the guardian of the plaintiff Shanmugam.
6. Order 32, Rule 15, C.P.C. reads thus:-
"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.
A reading of the above rule would only reveal that there was no adjudication that a person was of unsound mind, nor was there any enquiry resulting in the finding of the Courts that he was by reason of unsoundness of mind or mental infirmity incapable of protecting his interest in the suit. A suit by a person posing himself as the guardian of the lunatic and on his behalf is not competent. The rule applies to execution proceedings and to proceedings subsequent to final decree.
7. Mr. K. Kannan, learned counsel appearing for the respondent in his reply had submitted that Order 32, Rule 15, CPC is attracted only under two contingencies, (1) where as person is adjudged unsound, and (2) though not so adjudged if he is incapable of protecting his own interest while being sued. According to Mr. Kannan, the finding rendered by the lower court on the basis of the concession given by both the counsel on record is more than sufficient to appoint the said Saraswathi as guardian and that the court has got ample jurisdiction to act on the concession given by both the counsel appearing on either side, and therefore, under such circumstances, there is no warrant or need for referring to the mentally ill person for medical examination. I am unable to accept the said contention of the learned counsel for the respondent. I have already referred to the order passed by the lower court in the instant application. The learned Subordinate Judge, in my opinion, has failed to appreciate that an application under Order 32, Rule 15, C.P.C. at this stage of the case is not maintainable. The respondent has resorted to file the above application, as alleged by the petitioner herein, only in order to get over an evidence inconvenient to the plaintiff which has been let in voluntarily by the plaintiff herein who is the husband of the respondent herein. Likewise, the lower Court has failed to appreciate the scope and effect of the proceedings of Rule 15, of Order 32 and the powers conferred to the court in the said proceedings under the Code of Civil Procedure. Mr. Kannan at the time of arguments invited my attention to the averments made in the affidavit and contended that the averments mentioned in the affidavit and the concession given by the counsel at the time of hearing are more than sufficient to appoint her as the guardian. I am unable to agree. In this context the lower court has overlooked that the mere averments contained in the affidavit filed by the respondent herein stating that the plaintiff had a sudden attack and unable to attend to normal life, in the sense particularly that he became mentally deranged, that he could not understand the questions and answer the same are all totally vague and not supported by any other materials. In my opinion, the averments made in the affidavit are not sufficient to appoint the said Saraswathi as guardian of the plaintiff Shanmugam. The averments are totally bold in that no circumstances even have been averred as to when the plaintiff had suddenly become mentally deranged. Merely because the plaintiff took more time to answer each question that too in the cross examination the same cannot amount to mental infirmity and that he is not capable of understanding the proceedings. The very fact that the suit itself has been filed only by the plaintiff as early as 1983 and all these years it was only the husband of the respondent who had been conducting the proceedings and had sworn to several affidavits before the trial court and also in his court with respect to the above proceedings will all belie the contentions raised by the respondent that the plaintiff had become incapable of understanding the proceedings. The learned Subordinate Judge has also committed a serious error in observing that both the counsel agreed that the plaintiff appears to be not in a perfect mental condition. Even assuming that certain admission was made by the counsel for the petitioner. I am of the view that such admission is not sufficient to apply the requirements of ingredients of Order 32, Rule 15, C.P.C. In fact counsel for the petitioner had only represented before the trial court that the plaintiff was delaying the proceedings by taking too much of time to answer the questions. It is also to be noticed that the plaintiff has answered all questions in the chief examination properly. It was only in the cross examination the husband of the respondent was unable to answer the questions and that the lower court ought to have found that the husband of the respondent was not prevented by any mental condition and that it was only his inability to face the cross examination. Even assuming and not admitting for a while that the husband of the respondent had suffered mental infirmity, the learned Judge ought to have only resorted the plaintiff to medical expert for an opinion, which the lower court has miserably failed to do. Under Order 32, Rule 15, C.P.C. the court had ample power to direct the respondent to be subjected to the examination by a medical expert. In the absence of any medical certificate not even produced by the party concerned, the application in my view is not maintainable. The lower court has also failed to appreciate that the entire proceedings under Order 32, Rule 15, C.P.C. generally are initiated by the plaintiff when the suit is filed or by the defendant when he received the summon in the suit. It is really strange that the plaintiff having filed the suit and had conducted the proceedings for about 12 years, without even alleging the circumstances by which he became suddenly mentally deranged would resort to these proceedings and that the court would allow such an application at this stage. I am of the view that the order passed by the learned Subordinate Judge is totally against the judicial principles laid down in this regard and also against the principles contained in Order 32, Rule 15, C.P.C.
8. In Rami Reddi v. Papi Reddi, A.I.R 1963 A.P 160 while dealing with the nature of enquiry to be conducted by the Court, the learned single Judge of the Andhra Pradesh High Court held as follows:-
"Order 32, Rule 15, Civil P.C., applies not only to a person adjudged to be of unsound mind, as under the old Code, but also to a person of weak mind. Where in a suit filed by the plaintiff through his next friend an application is made by the next friend that the plaintiff is of unsound mind, or mentally infirm for the purpose of the rule, the extent of the infirmity has to be found by the court on inquiry. This enquiry should consist of the examination of the alleged lunatic by the Judge, either in open court or chambers, and as courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken. Where the precaution of such a judicial enquiry is not observed, the person cannot be declared lunatic, and a guardian cannot be appointed for him.
9. In Rami Reddy's Case, the suit had been brought on behalf of the plaintiff by his next friend on the obvious allegation that the plaintiff, because of reasons of mental infirmity, could not sue directly himself. Obviously in such a situation the issue of the mental infirmity of the party is thus brought into the field on behalf of the party himself and, if contested, must be gone into. The issue of unsoundness of mind of the parties in this case is primarily between the court and the party and is certainly not a lis between the parties themselves. The legislature in its wisdom has conferreds larger and paternal power on the court to see that each party has the capacity to safeguard its legal interest and is no way handicapped by reason of any mental infirmity. This beneficial and, indeed, paternal power is wholly vested in the court and it is in its discretion alone, where it finds that any one of the parties is suffering from a weakness of mind, to proceed for taking steps to safeguard the interest of such a party. In the instant case, the lower court has failed to exercise its discretion which is vested with it and to refer a party to medical examination in order to adjudge as to the unsoundness of mind of the plaintiff.
10. In my opinion, It is a fit case for referring the plaintiff Shanmugam to the Superintendent of Government Hospital, Trichy to medically examine him in order to find out whether he is mentally infirm or of unsound mind and submit a report to the lower court. The Lower Court on receipt of the said report may proceed in accordance with Order 32, Rule 15, C.P.C. and conduct the enquiry as contemplated under the said provision and decide the matter according to law. As the enquiry contemplated under Order 32, Rule 15, C.P.C. was not complied with and that the learned Subordinate Judge acted with material irregularity and illegality in the exercise of its jurisdiction, the order impugned in this revision is liable to be interfered with. Accordingly, the order passed in I.A.No. 157 of 1996 dated 9.8.1996 is set aside and this civil revision petition stands allowed. There will be no order as to costs.
11. Since the suit is of the year 1983, I direct the lower court to refer the plaintiff AL. Shanmugam for medical examination immediately on receipt of the records and order from this court and obtain a report within four weeks from the date of such reference and the lower Court shall proceed further and dispose of the main suit itself within three months thereafter positively and send a report of compliance to this Court.
12. In view of the disposal of the main revision petition itself CMP. No. 13571 of 1996 is dismissed.
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