Allahabad High Court
Ram Kumar vs Jag Pal Singh on 12 October, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:197912
Court No. - 1
Case :- SECOND APPEAL No. - 214 of 1995
Appellant :- Ram Kumar
Respondent :- Jag Pal Singh
Counsel for Appellant :- S.S. Nigam,Aditya Narain,Anil Kumar,Anirudh Sharma,Rajiv Sharma
Counsel for Respondent :- Ajit Kumar,A.P.S.Raghav,Akhilesh,Gaurav Pundir,Ruduvant Pratap Singh,S.K. Pundir,S.N. Singh
Hon'ble Jayant Banerji,J.
Restoration Application No.13 of 2023
1. Heard Shri Ankur Kushwaha, learned counsel for the applicant-appellant.
2. This application has been filed for setting aside the order dated 21.08.2023 passed by this Bench and to restore the review application along with delay condonation application and stay application to its original number.
3. The cause stated for non appearance is reflected in the affidavit of the sole appellant/defendant in paragraph no.2 which is found to be sufficient and therefore the review application is restored to its original number.
Order on Review Application
4. This application has been filed to review the judgment and order dated 25.02.2016 passed by another Bench of this Court.
5. The sole contention of the learned counsel for the appellant is that the substantial question of law that was framed was "whether the suit against a person of unsound mind could be instituted without there being his next friend or guardian?"
6. It is contended that neither the trial court nor the first appellate court had gone into the aspect of appointment of guardian of Mangat who was alleged to be a unsound mind.
7. I have perused the judgement under review. The substantial question of law framed by the Court was decided in negative but this court observed that it would not make any difference to the judgement to the trial court or of the appellate court. It was noted that the admitted legal position is that if a person is of unsound mind, then suit can be instituted on his behalf or against him only through next friend or guardian as prescribed in the provisions of Order XXXII C.P.C. The court went on to observe that if a person appears to be of unsound mind, then the Court has power and may institute an inquiry if appears to it that there is its necessity, but the Court observe that it is, however, not always duty bound to institute inquiry, when both the parties have been afforded opportunity of hearing and adducing evidence and have utilized such opportunity, which was done in the case at hand.
8. This court observed that the defendant Mangat was never produced before the court for observation of the court or as evidence (sic- witness). This Court noted that the trial court had framed issues about unsoundness of mind of Mangat, and thereafter, both the parties were afforded opportunity to adduce evidence, and such opportunity was availed by them. The defendant's side had also adduced documentary evidence relating to treatment of Mangat as well as doctors to prove their pleadings. After appreciating facts, evidence, and circumstances, the trial court had given specific finding of fact that defendant's side had failed to prove that Mangat was a person of unsound mind. This Court noticed that the first appellate court had confirmed the finding of the trial court and had dismissed the appeal.
9. This Court noted that the fact whether Mangat was a person of unsound mind or not at the time of execution of registered agreement to sell and at the time of institution of suit, was required to be decided on the basis of evidence as was done by the trial and appellate courts. The court held that such findings cannot be interfered in Second Appeal, which are based on findings of fact.
10. It was noted that the execution of the registered agreement to sell was admitted in the written statement filed on behalf of Mangat by his wife Phoolvati. However, Mangat had not appeared before the Court. His presence before the Court would have been the best evidence on behalf of the defendants. It was noted that the defendant-appellant's side had suppressed best available evidence from the court, due to which presumption of fact goes against the appellant. Accordingly, the appeal was dismissed.
11. Learned counsel for the review applicant has not been able to demonstrate as to how the judgement of the second appellate court suffers from any error apparent on the face of record warranting interference in exercise of jurisdiction under section 114 of C.P.C.
12. The Review Application is, therefore, dismissed.
Order Date :- 12.10.2023/SFH
(Jayant Banerji)
