Having heard the Learned Counsel for the parties I have
considered their rival contentions. It is to be borne in mind that the instant
application Exhibit 23 is referable to Order XXXII Rule 3 of the CPC and the
issue therefore which arises is whether guardian is required to be appointed for
the Petitioner No.3 to prosecute the Suit in question which has been filed by
the Respondent herein. The Trial Court was undoubtedly ceased with the
powers to appoint a guardian albeit after conducting an enquiry. Such a right
was recognised even when there were no specific provisions in the old CPC,
and the appointment of a guardian adlitem
was made by relying upon the rule
that was adopted by the English Courts. The scope of an application under the
MHA is different than the instant application as the instant application is in
respect of the appointment of a guardian adlitem.
It is in the said context that
the instant matter would have to be addressed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1776 OF 2014
Jaideep S/o Anant Dudhbhate & Ors. ..Petitioners
Vs.
Uday s/o Anant Dudhbhate ..Respondent
CORAM : R. M. SAVANT, J.
DATE : 16th SEPTEMBER, 2014
Citation; 2014 (6) MHLJ 321Bom
Read original judgment here;click here
1 Rule. With the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2 The Writ Jurisdiction of this Court is invoked against the order
dated 912014
passed by the Learned 4th Additional Judge of Small Causes
Court, Pune, by which order, the application Exhibit 23 filed by the Petitioners
herein for appointment of the Petitioner No.2 i.e. the Defendant No.2 to the
Suit as guardian of the Petitioner No.3 i.e. the Defendant No.3 came to be
rejected.
3 It is not necessary to burden this order with unnecessary details.
Suffice it to say that Suit in question being Special Civil Suit No.376 of 2013
has been filed by the Respondent herein for declaration that he is the coowner
to the extent of 1/4th share in the flat in question. The second relief is that the
Defendants be restrained by way of permanent injunction from creating any
third party right in the suit flat whereby sell, perpetual lease, mortgage or
otherwise. The Petitioner No.3 herein claims to be a legate of her mother in
respect of ½ share of the mother in the flat in question and on the basis of the
Will of her father claims to be the full owner of the flat in question. In the said
Suit the Will of the mother Sarla A. Dudhbhate is under challenge. It is in the
said Suit that the application Exhibit 23 came to be filed in support of the said
application. The documents in the form of medical report, psychological report,
were sought to be relied upon by the Petitioners amongst other documents.
The said documents appear to have been produced before the District Court in
the application filed under the Mental Health Act, 1987 (for short the MHA).
It seems that prior to the instant application Exhibit 23, the Petitioners have
filed an application under Section 50 of the MHA for a declaration that the
Petitioner No.3 is of unsound mind. It seems that an application for interim
relief was made in the said proceedings. Pursuant to the said application an
inquiry was conducted by the Learned District Judge wherein it seems that the
Petitioner No.3 was examined before the Court by putting certain questions to
her. The said application for interim relief in the said proceedings came to be
rejected by the Learned District Judge by holding that the Petitioner No.3 was
not of unsound mind. In the instant application Exhibit 23, the Trial Court
seems to have relied upon the text of the said examination which was carried
out before the Learned District Judge in the application filed under the Mental
Health Act and by taking into consideration the answers given by the Petitioner
No.3 to the questions put in her examination, as also taking into consideration
the final order that was passed by the District Judge, Pune in the interim
application, the Trial Court held that there is no necessity to appoint a
guardian for the Petitioner No.3 for the purposes of defending the Suit as she is
competent to protect her interest. As indicated above, it is the said order dated
912014
which is taken exception to by way of the above Petition.
4 The Learned Counsel appearing on behalf of the Petitioners Ms
Ahuja would seek to reiterate the case of the Petitioners before the Trial Court
and by relying upon the documents which have been placed before the Trial
Court would contend that in the facts and circumstances of the case, the
application Exhibit 23 was required to be allowed and the guardian was
required to be appointed for the Petitioner No.3 to prosecute the Suit in
question. The Learned Counsel took me through the documents which have
been annexed to the above Petition amongst which is the psychological
assessment report of the Pune Hospital and Research Center, which report is
under the signature of Ms Rucha Bapat, M.A.M.Phil (Clinical Psychology) as
also a report of Dr. Vidyadhar Watve dated 3032010
and also the receipts
issued by the Poona Geriatric Care Center which are for the years 20122013.
5 Per contra Ms Bhagalia the Learned Counsel appearing for the
Respondent would support the impugned order. It is the contention of the
Learned Counsel that the the Learned District Judge having rejected the
application for interim reliefs in the application filed under the Mental Health
Act, the order passed by the Trial Court taking the said fact into consideration
need not be interfered with. This was the main thrust of the submissions of the
Learned Counsel.
6 Having heard the Learned Counsel for the parties I have
considered their rival contentions. It is to be borne in mind that the instant
application Exhibit 23 is referable to Order XXXII Rule 3 of the CPC and the
issue therefore which arises is whether guardian is required to be appointed for
the Petitioner No.3 to prosecute the Suit in question which has been filed by
the Respondent herein. The Trial Court was undoubtedly ceased with the
powers to appoint a guardian albeit after conducting an enquiry. Such a right
was recognised even when there were no specific provisions in the old CPC,
and the appointment of a guardian adlitem
was made by relying upon the rule
that was adopted by the English Courts. The scope of an application under the
MHA is different than the instant application as the instant application is in
respect of the appointment of a guardian adlitem.
It is in the said context that
the instant matter would have to be addressed. The material which has been
placed on record on behalf of the Petitioners herein is therefore required to be
looked into. It would be apposite to produce excerpts of the report of Ms Rucha
Bapat to whom a reference was made by Dr. Vidyadhar Watve. The relevant
excerpts are for the sake of ready reference reproduced herein under :
“Her capacity for control and ability to deal with
stress effectively is less than desirable and is
vulnerable to disorganization and impulsive
thinking and behaviour as the situations become
more complex or ambiguous. She may be
vulnerable to disorganization even by natural
stresses of day to day living in a complex society.
She may function best in environments that are
well structured and relatively free of ambiguity.
She seems to be striving to achieve more than is
possible in the light of her current functional
capacities. If this tendency occurs in everyday
behaviors, the probability of failure to achieve
objectives is increased, and the consequent impact
of those failures can lead to the experience of
frustration.
There is likely to be a serious problem in
information processing. The impairment in reality
testing is global in nature may present itself even
in the fact of obvious distal cues. There are
indications to pervasive tendencies to
meditational impairment. There is substantial
likelihood of in appropriate behaviors which may
be due to the impairment in reality testing. Her
capacity for control and ability to deal with stress
effectively is less than desirable and is vulnerable
to disorganization and impulsive thinking and
behavior as the situations become more complex
or ambiguous. She may be vulnerable to
disorganization even by a natural stresses of day
to day living in a complex society. She may
function best in environments that are well
structured and relatively free of ambiguity. The
impact of situational stress is likely to range from
mild to moderate. This has resulted in an increase
in preexisting
confusion about emotion. This
confusion may escalate the likelihood of
behavioral impulsiveness rather markedly. There
is a potential for effective disruption. The profile
indicates presence of distress. There is excessive
internalization of feeling which the person would
like to externalize. She is burdened with more
irritating feelings than is normally the case. This is
likely to result in experiences of subjective
discomfort, sadness or tension. The profile also
indicates suicidal ideation. Her estimate of
personal worth is likely to be negative. She is
likely to be interested in others but may not
understand them well. It is probable that she does
not anticipate positive interactions among people
and is less comfortable in interpersonal situations.
She may periodically exhibit incongruous or
disorganized behavior. She may occasionally
appear confused and disoriented. At time her
affect may appear inappropriate to the
surrounding. She may also suffer from auditory
hallucinations and unsystematic delusions.
Impression : The profile in conjunction with the
client's history is indicative of Chronic
Schizophrenia.”
7 A reading of the said report of Ms Rucha Bapat to a layman
therefore lends to a conclusion that the Petitioner No.3 is suffering from
Chronic Schizophrenia and would therefore not be in a position to stand the
pressure or the strain of a trial.
8 The Trial Court as can be seen has merely relied upon the
examination which took place before the District Court, of the Petitioner No.3
wherein she was put some questions which she has answered and thereafter
taking into consideration the fact that the District Court has rejected the
application for interim reliefs in the MHA proceedings, has rejected the said
application Exhibit 23. The question which therefore arises is whether in view
of the ailment which the Petitioner No.3 is suffering from, she would be able to
prosecute the Suit in a proper manner. The answer would obviously have to be
in the negative. Merely because at some point of time she may have given
proper answers to the questions which were put to her, would not imply that
she would be in a position to comprehend the complexities and take a decision
in respect of various matters which would arise at various stages of the Suit.
The test which is applicable is whether the Petitioner No.3 is capable of
protecting her interests. A reading of the reports which have been placed on
record raise a serious question and doubt about the capability of the Petitioner
No.3. Since the ultimate endeavour would be to see to it that there is a fair
trial, in my view the interest of justice would be served if the Petitioner No.2
who is her brother is appointed as guardian adlitem
of the Petitioner No.3
which is the relief sought by the Petitioners/Defendants by the said application
Exhibit 23. By such appointment no great prejudice would be caused to the
Respondent/Plaintiff, however, the appointment would in fact ensure that the
Suit is prosecuted in a proper manner on behalf of the Petitioner No.3 who as
indicated above claims to be a legate of her mother's /1/2 share in the property
in question by virtue of the Will of her mother which is under challenge in the
Suit. The impugned order is accordingly quashed and set aside. The application
Exhibit 23 is allowed. The Petitioner No.2 is appointed as guardian adlitem
of
the Petitioner No.3. Needless to state that appointment of the Respondent No.2
as guardian is only for the purposes of the present Suit. The application under
the Mental Health Act would undoubtedly be tried on its own merits and in
accordance with law.
9 Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
Print Page
considered their rival contentions. It is to be borne in mind that the instant
application Exhibit 23 is referable to Order XXXII Rule 3 of the CPC and the
issue therefore which arises is whether guardian is required to be appointed for
the Petitioner No.3 to prosecute the Suit in question which has been filed by
the Respondent herein. The Trial Court was undoubtedly ceased with the
powers to appoint a guardian albeit after conducting an enquiry. Such a right
was recognised even when there were no specific provisions in the old CPC,
and the appointment of a guardian adlitem
was made by relying upon the rule
that was adopted by the English Courts. The scope of an application under the
MHA is different than the instant application as the instant application is in
respect of the appointment of a guardian adlitem.
It is in the said context that
the instant matter would have to be addressed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1776 OF 2014
Jaideep S/o Anant Dudhbhate & Ors. ..Petitioners
Vs.
Uday s/o Anant Dudhbhate ..Respondent
CORAM : R. M. SAVANT, J.
DATE : 16th SEPTEMBER, 2014
Citation; 2014 (6) MHLJ 321Bom
Read original judgment here;click here
1 Rule. With the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2 The Writ Jurisdiction of this Court is invoked against the order
dated 912014
passed by the Learned 4th Additional Judge of Small Causes
Court, Pune, by which order, the application Exhibit 23 filed by the Petitioners
herein for appointment of the Petitioner No.2 i.e. the Defendant No.2 to the
Suit as guardian of the Petitioner No.3 i.e. the Defendant No.3 came to be
rejected.
3 It is not necessary to burden this order with unnecessary details.
Suffice it to say that Suit in question being Special Civil Suit No.376 of 2013
has been filed by the Respondent herein for declaration that he is the coowner
to the extent of 1/4th share in the flat in question. The second relief is that the
Defendants be restrained by way of permanent injunction from creating any
third party right in the suit flat whereby sell, perpetual lease, mortgage or
otherwise. The Petitioner No.3 herein claims to be a legate of her mother in
respect of ½ share of the mother in the flat in question and on the basis of the
Will of her father claims to be the full owner of the flat in question. In the said
Suit the Will of the mother Sarla A. Dudhbhate is under challenge. It is in the
said Suit that the application Exhibit 23 came to be filed in support of the said
application. The documents in the form of medical report, psychological report,
were sought to be relied upon by the Petitioners amongst other documents.
The said documents appear to have been produced before the District Court in
the application filed under the Mental Health Act, 1987 (for short the MHA).
It seems that prior to the instant application Exhibit 23, the Petitioners have
filed an application under Section 50 of the MHA for a declaration that the
Petitioner No.3 is of unsound mind. It seems that an application for interim
relief was made in the said proceedings. Pursuant to the said application an
inquiry was conducted by the Learned District Judge wherein it seems that the
Petitioner No.3 was examined before the Court by putting certain questions to
her. The said application for interim relief in the said proceedings came to be
rejected by the Learned District Judge by holding that the Petitioner No.3 was
not of unsound mind. In the instant application Exhibit 23, the Trial Court
seems to have relied upon the text of the said examination which was carried
out before the Learned District Judge in the application filed under the Mental
Health Act and by taking into consideration the answers given by the Petitioner
No.3 to the questions put in her examination, as also taking into consideration
the final order that was passed by the District Judge, Pune in the interim
application, the Trial Court held that there is no necessity to appoint a
guardian for the Petitioner No.3 for the purposes of defending the Suit as she is
competent to protect her interest. As indicated above, it is the said order dated
912014
which is taken exception to by way of the above Petition.
4 The Learned Counsel appearing on behalf of the Petitioners Ms
Ahuja would seek to reiterate the case of the Petitioners before the Trial Court
and by relying upon the documents which have been placed before the Trial
Court would contend that in the facts and circumstances of the case, the
application Exhibit 23 was required to be allowed and the guardian was
required to be appointed for the Petitioner No.3 to prosecute the Suit in
question. The Learned Counsel took me through the documents which have
been annexed to the above Petition amongst which is the psychological
assessment report of the Pune Hospital and Research Center, which report is
under the signature of Ms Rucha Bapat, M.A.M.Phil (Clinical Psychology) as
also a report of Dr. Vidyadhar Watve dated 3032010
and also the receipts
issued by the Poona Geriatric Care Center which are for the years 20122013.
5 Per contra Ms Bhagalia the Learned Counsel appearing for the
Respondent would support the impugned order. It is the contention of the
Learned Counsel that the the Learned District Judge having rejected the
application for interim reliefs in the application filed under the Mental Health
Act, the order passed by the Trial Court taking the said fact into consideration
need not be interfered with. This was the main thrust of the submissions of the
Learned Counsel.
6 Having heard the Learned Counsel for the parties I have
considered their rival contentions. It is to be borne in mind that the instant
application Exhibit 23 is referable to Order XXXII Rule 3 of the CPC and the
issue therefore which arises is whether guardian is required to be appointed for
the Petitioner No.3 to prosecute the Suit in question which has been filed by
the Respondent herein. The Trial Court was undoubtedly ceased with the
powers to appoint a guardian albeit after conducting an enquiry. Such a right
was recognised even when there were no specific provisions in the old CPC,
and the appointment of a guardian adlitem
was made by relying upon the rule
that was adopted by the English Courts. The scope of an application under the
MHA is different than the instant application as the instant application is in
respect of the appointment of a guardian adlitem.
It is in the said context that
the instant matter would have to be addressed. The material which has been
placed on record on behalf of the Petitioners herein is therefore required to be
looked into. It would be apposite to produce excerpts of the report of Ms Rucha
Bapat to whom a reference was made by Dr. Vidyadhar Watve. The relevant
excerpts are for the sake of ready reference reproduced herein under :
“Her capacity for control and ability to deal with
stress effectively is less than desirable and is
vulnerable to disorganization and impulsive
thinking and behaviour as the situations become
more complex or ambiguous. She may be
vulnerable to disorganization even by natural
stresses of day to day living in a complex society.
She may function best in environments that are
well structured and relatively free of ambiguity.
She seems to be striving to achieve more than is
possible in the light of her current functional
capacities. If this tendency occurs in everyday
behaviors, the probability of failure to achieve
objectives is increased, and the consequent impact
of those failures can lead to the experience of
frustration.
There is likely to be a serious problem in
information processing. The impairment in reality
testing is global in nature may present itself even
in the fact of obvious distal cues. There are
indications to pervasive tendencies to
meditational impairment. There is substantial
likelihood of in appropriate behaviors which may
be due to the impairment in reality testing. Her
capacity for control and ability to deal with stress
effectively is less than desirable and is vulnerable
to disorganization and impulsive thinking and
behavior as the situations become more complex
or ambiguous. She may be vulnerable to
disorganization even by a natural stresses of day
to day living in a complex society. She may
function best in environments that are well
structured and relatively free of ambiguity. The
impact of situational stress is likely to range from
mild to moderate. This has resulted in an increase
in preexisting
confusion about emotion. This
confusion may escalate the likelihood of
behavioral impulsiveness rather markedly. There
is a potential for effective disruption. The profile
indicates presence of distress. There is excessive
internalization of feeling which the person would
like to externalize. She is burdened with more
irritating feelings than is normally the case. This is
likely to result in experiences of subjective
discomfort, sadness or tension. The profile also
indicates suicidal ideation. Her estimate of
personal worth is likely to be negative. She is
likely to be interested in others but may not
understand them well. It is probable that she does
not anticipate positive interactions among people
and is less comfortable in interpersonal situations.
She may periodically exhibit incongruous or
disorganized behavior. She may occasionally
appear confused and disoriented. At time her
affect may appear inappropriate to the
surrounding. She may also suffer from auditory
hallucinations and unsystematic delusions.
Impression : The profile in conjunction with the
client's history is indicative of Chronic
Schizophrenia.”
7 A reading of the said report of Ms Rucha Bapat to a layman
therefore lends to a conclusion that the Petitioner No.3 is suffering from
Chronic Schizophrenia and would therefore not be in a position to stand the
pressure or the strain of a trial.
8 The Trial Court as can be seen has merely relied upon the
examination which took place before the District Court, of the Petitioner No.3
wherein she was put some questions which she has answered and thereafter
taking into consideration the fact that the District Court has rejected the
application for interim reliefs in the MHA proceedings, has rejected the said
application Exhibit 23. The question which therefore arises is whether in view
of the ailment which the Petitioner No.3 is suffering from, she would be able to
prosecute the Suit in a proper manner. The answer would obviously have to be
in the negative. Merely because at some point of time she may have given
proper answers to the questions which were put to her, would not imply that
she would be in a position to comprehend the complexities and take a decision
in respect of various matters which would arise at various stages of the Suit.
The test which is applicable is whether the Petitioner No.3 is capable of
protecting her interests. A reading of the reports which have been placed on
record raise a serious question and doubt about the capability of the Petitioner
No.3. Since the ultimate endeavour would be to see to it that there is a fair
trial, in my view the interest of justice would be served if the Petitioner No.2
who is her brother is appointed as guardian adlitem
of the Petitioner No.3
which is the relief sought by the Petitioners/Defendants by the said application
Exhibit 23. By such appointment no great prejudice would be caused to the
Respondent/Plaintiff, however, the appointment would in fact ensure that the
Suit is prosecuted in a proper manner on behalf of the Petitioner No.3 who as
indicated above claims to be a legate of her mother's /1/2 share in the property
in question by virtue of the Will of her mother which is under challenge in the
Suit. The impugned order is accordingly quashed and set aside. The application
Exhibit 23 is allowed. The Petitioner No.2 is appointed as guardian adlitem
of
the Petitioner No.3. Needless to state that appointment of the Respondent No.2
as guardian is only for the purposes of the present Suit. The application under
the Mental Health Act would undoubtedly be tried on its own merits and in
accordance with law.
9 Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
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