Allahabad High Court
Veer Sain And Another vs Virendra Singh on 20 July, 2017
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 4333 of 2017
Petitioner :- Veer Sain And Another
Respondent :- Virendra Singh
Counsel for Petitioner :- Pramod Jain
Hon'ble Mrs. Sunita Agarwal,J.
By means of the present petition, the order dated 16.09.2016 passed by the Civil Judge (J.D) Ist, Baghpat, in original suit no.204 of 2011, in rejecting application 63-Ga moved by the defendant is under challenge. The revisional order dated 04.04.2017 passed in Civil Revision no.32 of 2016 is also been challenged.
The aforementioned suit has been filed by one Sri Virendra Singh son of late Raghuvir Singh through his wife and next friend Smt. Satto against the defendant/petitioner. The petitioner moved an application 63-Ga with the contention that the suit filed through next friend Smt. Satto by the plaintiff was not maintainable in as much as, the proceeding under Section 50 and 54 of the Mental Health Act 1987 for appointment of guardian of the plaintiff Sri Virendra Singh was pending.
The contention of the petitioners was that the application under Section 7 of Guardian and Wards Act, 1890 for appointment of Guardian moved by Smt. Satto was rejected on 04.03.2016. Whereas another proceeding under the Mental Health Act, 1987 was pending. Smt. Satto had never been appointed as next friend of the plaintiff by a competent court of law and, therefore, the suit was not competent.
This application was rejected by the order dated 16.09.2016 wherein it is categorically recorded that no evidence was filed by the petitioner/defendant before the court below so as to prove that the interest of the plaintiff is not vested in Smt. Satto or the interest of Smt. Satto i.e. wife of the plaintiff was in conflict with the interest of the plaintiff Sri Virendra. It is also recorded by the court below that the plaintiff has filed a disability certificate paper no.13-Ga which had been issued by the competent authority and no exception can be taken thereof by the Court. With these finding, the court below has opined that Smt. Satto can pursue the suit being next friend to the plaintiff Sri Virendra and the suit is competent to proceed, accordingly.
These findings are challenged in the present petition with the contention by the learned counsel for the petitioner that during pendency of the proceeding under the Mental Health Act, 1987, it was not open for the court below to appoint Smt. Satto as next friend to the plaintiff Sri Virendra. As per own case of the plaintiff, no Guardian as on the day, had been appointed by the competent court under the relevant legal provision.
To deal with this submission of learned counsel for the petitioner, it would be pertinent to go through the provision of section 52 of the Mental Health Act, 1979 which deals with the appointment of guardian of a "mentally ill" person. The word "mentally ill person" has been defined in section 2 (l) of the said Act. Section 2(l) and section 52 of the Mental Health Act, 1987 are re-produced as under;-
"2(l) "mentally ill person" means a person who is in need of treatment by reason of any mental disorder other than mental retardation"
52. Provision for appointing guardian of mentally ill person and for manager of property.?
(1) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of taking care of himself and of managing his property, it shall make an order for the appointment of a guardian under section 53 to take care of his person and of a manager under section 54 for the management of his property.
(2) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of managing his property but capable of taking care of himself, it shall make an order under section 54 regarding the management of his property.
(3) Where the District Court records a finding that the alleged mentally ill person is not mentally ill, it shall dismiss the application.
(4) Where the District Court deems fit, it may appoint under sub-section (1) the same person to be the guardian and manager."
A careful reading of the aforesaid provision goes to show that a "mentally retard person" is not included in the definition of "mentally ill person", section 52 deals with the appointment of guardian of mentally ill person. The plaintiff/Sri Virendra claim to be a mentally retard person. As per the certificate given by the Chief Medical Officer, he suffers from 70% mental disability. As a result of it, the pending proceeding, if any, under the Mental Health Act, 1987 cannot be a bar in proceeding the suit and in accepting the certificate given by the Chief Medical Officer of the plaintiff being mentally retard person. The Chief Medical Officer is the competent authority to issue such certificate under the the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995.
In view thereof, the dispute being raised by the petitioner regarding appointment of the wife of the plaintiff as next friend or the plaintiff being a mentally retard person cannot be entertained.
Next limb of arguments of the learned counsel for the petitioner is that the plaintiff had never moved the Court as per the procedure provided under Order 32 Rule 15 of C.P.C. which deals with the appointment of next friend on an application moved by the person who claims to look after the interest of a mentally retard person. Submission is that the proper procedure provided from Rule 1 to Rule 14, was to be adopted by the plaintiff or his wife before institution of the suit.
With reference to Rule 5 of Order 32 of Code of Civil Procedure, it is submitted by learned counsel for the petitioner that an application was required to be moved under Rule 10 sub rule (2) by the next friend of a minor or a person of an unsound mind or suffering from any mental infirmity. In case of any such application, for appointment of next friend, an order is to be passed by the Court below after considering the evidence on record and giving opportunity to a person who objects to such an appointment. As no such procedure has been followed, the suit cannot proceed.
This submission of learned counsel for the petitioner is found misconceived for the simple reason that by the order impugned, the court below has addressed only on this aspect of the matter. The suit was instituted by Smt. Satto, wife of Virendra Singh, claiming to be next friend of Sri Virendra Singh, her husband, who is mentally retard person. On the objection raised by the defendant, the certificate of the competent authority showing the mental infirmity of plaintiff has been filed. The evidence on record were duly examined by the court below and an order has been passed whereby Smt. Satto has been appointed as next friend to pursue the suit on behalf of the plaintiff. There was no requirment of any spearate application or separate proceeding for the purpose.
The objection taken by the learned counsel for the petitioner are too technical in nature.
In view of the above reasons, this Court does not find any merit in the present petition, it is, accordingly, dismissed.
Order Date :- 20.7.2017
Himanshu
