Allahabad High Court
Khokha Rai vs Xiith Additional District Judge, ... on 16 December, 1998
Equivalent citations: 1998 (4) AWC 657, AIR1999 160, 1999 (35) ALR 318,
This writ petition is directed against the order dated 30.7.1998 rejecting the application filed on behalf of the petitioner to appoint next friend of the petitioner as he is of unsound mind and the order dated 21.10.1998 dismissing the Revision against the aforesaid order.
2. Briefly stated, the facts are that respondent No. 3 filed a suit for recovery of arre'ars of rent, ejectment and damages against the petitioner, Khokha Rai. The petitioner filed a written statement in the suit admitting various facts stated in the plaint. Subsequently he filed an application alleging that he had engaged Ram Bahadur Singh. Advocate who colluded with the plaintiff and got a wrong written-statement filed jeopardising his interest. He is almost an illiterate person and he only puts his signatures on the papers. The trial court rejected this application disbelieving his version. The revision preferred against this order was dismissed. He filed a writ petition in the High Court which was also dismissed.
3. The wife of the petitioner, thereafter, filed an application under Order XXXII, Rule 15, C.P.C.. stating therein that her husband Khokha Rat, was totally upset by the fact that he had admitted certain facts in the written statement and, therefore, the suit may be decreed and he will be evicted from the disputed premises. He developed mental infirmity and became of an unsound mind. It was prayed that an enquiry may be conducted in the matter and after coming to the conclusion that the defendant Khokha Ral is incapable of protecting his interest in the suit by reason of his mental infirmity, she may be appointed as a guardian and next friend of her husband. She filed an affidavit in support of the application. The plaintiff-respondent filed Counter-affidavit. The trial court, after taking into consideration the version of the petitioner, rejected it on 30.7.1998 on the finding that the applicant failed to establish a prima facie case that her husband was mentally Infirm. The revision filed against the aforesaid order has been dismissed by respondent No. 1 on 21.10.1998.
4. The main thrust of the submissions of the learned counsel for the petitioner is that the trial court should have made a preliminary enquiry and given an opportunity to adduce the evidence to prove that the defendant was mentally Infirm and of unsound mind.
5. The petitioner had filed an affidavit in support of her version. She had also filed medical prescriptions of one Dr. A. K. Tandon. In the revision, it is alleged that she filed three papers, first medical prescriptions of S. R. N. Medical College dated 1.9.1998 about the medical treatment of Dr. A. K. Tandon, the second prescription of the same date about his heart ailment under the treatment of Dr. D. K. Agrawal and third one was the leaflet of F.C.G. In respect of the heart of the defendant. The petitioner did not file any certificate from the doctor who is alleged to have treated the petitioner to show that he was of unsound mind. The prescriptions itself did not show that the defendant was either of unsound mind or mentally Infirm. The application can be decided on the basis of the affidavit filed by a party as contemplated under Order XIX, Rule 1, C.P.C. It was for the applicant to establish prima facie that the defendant was of unsound mind.
6. There is nothing to show that the plaintiff filed an application to lead any further evidence and such application was rejected by the Court. The Court Itself cannot ask a party to lead evidence. It was for the applicant to lead evidence in support of her version. An enquiry under Order XXXII, Rule 15, C.P.C. Is to be made by the Court only when the material evidence is produced before it. There is nothing to show that the Court had shut the applicant to lead evidence.
7. Learned counsel for the petitioner has placed reliance upon the decision P. P. Ar. Rm. Sp. Ramanathan Chettiar v. A. R. R. M. Somasundaram Chettiar, AIR 1941 Madras 505, wherein it was held that if the Court does not hold an enquiry under Order XXXII. Rule 15. C.P.C. but relies on the previous history of the litigation and forms its own opinion after looking at the defendant and eliciting answers to some questions, it is not an enquiry contemplated under Order XXXII, Rule 15. C.P.C. The Court should have given the opportunity for production of a doctor's certificate. In Chapalamadugu Govindayya and another v. Suddapalli Ramamurthi and others. AIR 1941 Madras 524, it was held that before a next friend can represent a person Incapable of protecting his rights, it is not necessary that there should be a preliminary inquiry by the Court that the person by reason, of unsoundness of mind or mental infirmity is incapable of protecting his interests. All that is needed is that there should be some prima facie proof such as to satisfy the Court that the person was by reason of unsoundness of mind or mental infirmity is Incapable of protecting his interest. In Smt. Godawari Devi v. Smt. Radha Pyari Devi and others, AIR 1985 Patna 366, it has been held that the defendant cannot compel the Court to make an enquiry about the unsoundness of the mind of the plaintiff as it is the matter between the Court and the person who is alleged to be of unsound mind. These cases have no application to the facts of the present case. The Court was to satisfy prima facie itself on the basis of the evidence adduced by the applicant that the person was of unsound mind. The mere fact that the person has filed an application for appointment of guardian does not oblige the Court to ash the applicant to produce the evidence. It is for the applicant to produce the evidence. The applicant herself filed an affidavit in support of her version and filed medical prescriptions. The affidavit was converted and the medical prescriptions itself did not indicate that the defendant was of unsound mind.
8. The trial court had directed the applicant to produce the defendant. The defendant was not produced before the Court. In this petition, it is stated that the Presiding Officer, who had passed the order, had been changed and thereafter the next Presiding Officer only heard the arguments and on the oral request made by the applicant, an opinion was expressed that it was not necessary to produce such defendant. There is nothing in the order-sheet to indicate that the Presiding Officer had refused to examine the defendant. It was for the applicant to have filed an application to produce the defendant. Even before the revlsional authority, the applicant did not make such prayer.
9. I do not find any merit in the writ petition. It is, accordingly, dismissed.
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