Ram Prakash Yadav & Anr. vs Sitaram
2019 Latest Caselaw 336 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 25
 

 
Case :- MISC. SINGLE No. - 6063 of 2019
 

 
Petitioner :- Ram Prakash Yadav & Anr.
 
Respondent :- Sitaram
 
Counsel for Petitioner :- Sudeep Kumar,Avdhesh Kumar Pandey
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard learned counsel for the petitioners.

The petitioners challenge the order dated 12.2.2019 passed by the District Judge, Lucknow in Civil Revision No.144 of 2018 (Ram Prakash Yadav and others vs. Sitaram) and the order passed by the Additional Civil Judge (Junior Division), Lucknow in Regular Suit no.70 of 1999.

It is the case of the petitioners that they had purchased a piece of land from Sitaram and when they sought to enforce the sale deed, Sitaram, the defendant filed the aforesaid suit for cancellation of sale deed on the ground that he is of unsound mind and the petitioners very cleverly had got his signatures on blank papers and later on, the alleged sale deed was got registered. It has been submitted that the said suit was filed in 1999 by the plaintiff claiming that he being of unsound mind, he is filing the suit through his next friend and kin Ram Singh. It was alleged in the said suit that the defendant no.1 is a Typist in Civil Court and had fraudulently obtained the signatures of Sitaram on some papers and got the sale deed executed thereafter. Being of unsound mind, the plaintiff could not at that time understand that his signatures being put on some papers. After 19 years of the said suit being filed which initially could not have been entertained without guardian and next friend, the alleged Ram Singh being impleaded an Application no.A-88 was filed under Order 32 Rules 3 and 4 read with Section 151 of CPC for declaration of Ram Singh to be the guardian of the plaintiff and to be appointed as his next friend in the said suit. The petitioners moved an objection Paper no.C-91, saying that the plaintiff was not a person of unsound mind. Since it was being seriously disputed that the plaintiff was of unsound mind, Rule 15 of Order 32 of CPC required that an enquiry be conducted in the matter by the court concerned before any orders could be passed on the said application. However, the said application was allowed without conducting such enquiry on the ground that on 29.1.2018 (it is alleged that the date is actually 29.1.2008), a hearing was conducted by the trial court in which, the plaintiff Sitaram was summoned in person and it was found from his demeanor that he was of unsound mind.

Learned counsel for the petitioners has submitted that the order dated 2.8.2018 passed by the trial court was challenged in Civil Revision no.144 of 2018 but the learned District Judge has also presumed that such an enquiry was indeed conducted by the learned trial court when he summoned the plaintiff in person and examined him.

Learned counsel for the petitioners has led this Court through the orders dated 2.8.2018 and 29.1.2008. It is apparent that the plaintiff Sitaram had been present in person before the trial court and had been unable to reply to any of the questions put by the learned trial court. Learned trial court without expressing any opinion with regard to unsoundness of mind only observed that the plaintiff was found incompetent to give reply to any of the queries made by the court. In the circumstances, the alleged Ram Singh was asked to submit any evidence, which he had with regard to unsoundness of mind of the plaintiff. It is apparent that no specific orders with regard to unsoundness of mind of the plaintiff were passed on 29.1.2008. The matter was posted for 19.2.2008 for disposal of application Paper nos.C-52 and C-67.

Learned counsel for the petitioners has referred to a judgment rendered by the Supreme Court in Sharda vs. Dharampal (2003) 4 SCC 493, and Paragraphs no.50 and 51 thereof.

I have gone through the said judgment. The facts of the case relied upon relate to a divorce petition being filed in which a ground of mental illness was raised by the respondent therein, the trial court had rejected the application for conducting an enquiry saying that it had no power to do so. The observations made in Paragraph nos.50 and 51 are apposite to the controversy as much as they refer to Order 32 Rule 15 of CPC and Section 41 of the Indian Lunacy Act. It was observed that the question as to whether a person is mentally ill or not can be looked into by the court concerned and for the purpose of judging his competence, the court can examine a witness and issue requisite directions also. The prime concern of the court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue may have some relevance to the determination of the lis ultimately. The Supreme Court also observed that asking a person to submit himself to such enquiry by the court may not amount to invasion of his right of privacy or to battery, such a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the court to arrive at a just conclusion. The court can arrive at an appropriate conclusion only if such a person who is alleged to be of unsound mind is examined by a properly qualified psychiatrist. Such an examination or enquiry can be done by the court either suo motu or also on an application filed by a party to the marriage.

Learned counsel for the petitioners has also referred to a judgment of this Court by a coordinate Bench in Km. Sarita Devi vs. Ram Babu @ Ram Prakash and another 2006 (65) ALR 518. In the said judgment, this Court was considering whether the petitioner could be allowed to pursue a litigation through guardian and observed after quoting Rule 15 of Order 32 of CPC that the court is required to hold an enquiry to find out that by reason of any mental infirmity the defendant is unable to protect his interest and, therefore, it was necessary for the court to come to a conclusion that the defendant is of unsound mind and is unable to protect his interest. The Court observed that from the impugned order, it was clear that the trial court had not made any such enquiry and had permitted the defendant to contest the suit through guardian on the basis of medical prescriptions only, which in the opinion of the Court, is insufficient to come to the conclusion that the defendant was of unsound mind. The Court referred to another judgment, namely, Prabhat Sharma and another vs. Hari Shankar Srivastava and others, 1988 (1) ARC 285 to observe that the Court must hold a judicial enquiry and come to a definite conclusion that the person was incapable of protecting his interest by reason of unsoundness of mind or mental infirmity. Such infirmity could be determined not only on the basis of examination of witnesses produced by either of the parties, but also the examination of person concerned either in open Court or in the chamber of the Presiding Officer and the opinion of a Doctor is also a relevant piece of evidence. The Court also referred to another judgment in Tirtha Pradhan and others vs. Balabhadra Pradhan and another, AIR 1993 Orrisa 50, to observe that failure to conduct such an enquiry into the alleged mental infirmity of a person vitiates the entire order.

I have gone through the judgment as cited before this Court and also the order dated 29.1.2008 wrongly referred to as order dated 29.1.2018 in the orders impugned. This Court finds that no definite conclusion was drawn by the learned trial court even after examination of the plaintiff Sitaram by it in open court.

It is apparent that no judicial enquiry was held to come to the conclusion that Sitaram was of unsound mind. Since such an enquiry is necessary, which was not done, the orders impugned dated 2.2.2018 and 12.2.2019 are vitiated and are set aside. The matter is remanded to the trial court to consider it afresh along with Application no.A-88 and its objections, namely, Paper no.C-91 at the earliest. The plaintiff Sitaram can be got examined by a psychiatrist or a psychoanalyst only to reach a definite conclusion by the trial court with regard to the plea of unsoundness of mind taken by the plaintiff and his next friend and kin Ram Singh. Regular Suit no.70 of 1999 being more than 19 years old, it is expected that the learned trial court shall exercise all expedition in deciding the same at the earliest.

In view of the order passed today remanding the matter to the learned trial court for deciding afresh, it is expected that the plaintiff and his next friend and kin will be given all opportunity to file evidence etc. before the learned trial court. Learned trial court is enjoined to give opportunity of hearing as the respondent to this writ petition has not been heard by this Court before passing this order.

The writ petition is allowed.

Order Date :- 1.3.2019

Sachin