Delhi High Court
Ms Mithilesh Chauhan vs Shri Rajesh Kumar Pandey on 3 November, 2009
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1656/2007.
% Date of decision: 3rd November, 2009
MS MITHILESH CHAUHAN ....Petitioner
Through: Mr. Sachin Mittal, Advocate.
Versus
SHRI RAJESH KUMAR PANDEY ... Respondent
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. This petition under Article 227 of the Constitution of India has been
preferred against the order dated 22nd August, 2007 of the trial court. The
respondent/plaintiff instituted the suit against the petitioner herein for ejectment of
the petitioner from immovable property after the determination of tenancy of the
petitioner, recovery of rent, mesne profits etc. The petitioner through her daughter
filed a written statement. It was, inter alia, stated in the said written statement that
the petitioner is mentally sick, suffering from psychiatric disease for the last
several years and the documents on the basis whereof the respondent/plaintiff had
instituted the suit had also been got executed by the respondent/plaintiff taking
advantage of the said illness of the petitioner. The daughter of the petitioner who
had filed the said written statement on behalf of the petitioner thereafter also filed
an application under Order 32 Rule 3(2) of the CPC for appointment of herself as
the guardian of the petitioner for the purposes of the suit. It was stated in the said
application that the petitioner herein is suffering from mental illness and
psychiatric disease and is not in her full senses and is unable to take decisions for
herself. The respondent/plaintiff contested the said application by filing a reply.
It was controverted that the petitioner is mentally ill and it was further pleaded that
the said plea has been taken malafide.
2. The trial court vide order impugned in this petition dismissed the said
application of the daughter of the petitioner. The trial court has held that the
petitioner in the written statement, filed through her daughter, had taken
inconsistent stands; while at one place it was stated that the petitioner was ill at the
time of execution of the documents relating to property in favour of the
respondent/plaintiff, at another place the fact of the execution of the very same
document has been denied. The trial court further held that no material had been
placed before the court to show that the petitioner was unable to take her decisions
or that a guardian was required for the purposes of the present suit. The trial court
thus did not feel the need to hold any inquiry also into the status of mind of the
petitioner.
3. This petition has also been preferred by the petitioner through her daughter.
This court on 19th December, 2007 issued notice of this petition to the respondent
and also stayed further proceedings in the suit. The respondent has failed to
appear inspite of service and inspite of further proceedings in the suit having been
stayed. The counsel for the petitioner has been heard.
4. The counsel for the petitioner has relied on B.K. Khanna Vs K.N. Khanna
1978 Delhi 48, Shakunthala Devi Vs K.S. Naidu AIR 2005 Madras 56, C.S.
Navamani Vs C.K. Sivasubramanian AIR 2006 Madras 347 and Jairam Gurnani
Vs Smt. Shanta Gurnani (1979) 15 DLT 8.
5. In B.K. Khanna (supra) it has inter alia been held that Order 32 clearly
envisages that when a plea as to the state of mind of any of the parties to a
proceeding is taken, before proceeding further, the question of the state of mind
must be first determined by a preliminary inquiry.
6. I find that the Supreme Court in Kasturi Bai Vs Anguri Choudhary
MANU/SC/0082/2003 has also held that where a plea of unsoundness of mind or
of any of the parties to a proceeding of a party to a litigation being incapable of
protecting his/her interest by way of any mental infirmity is taken, holding of an
inquiry is a must. This court also in Shri Jai Prakash Goel Vs State
MANU/DE/0780/2004 has held that the court is empowered to appoint a guardian
only in the event a person is adjudged to be of unsound mind and/or incapable of
protecting his or her interest in a litigation. It was further held that whenever such
a plea is taken holding of an inquiry is a must.
7. The trial court in the present case has not returned any finding on the
mental status of the petitioner and has been swayed by the inconsistencies in the
written statement which was filed not by the petitioner but by the daughter of the
petitioner though on behalf of the petitioner. This petition is also accompanied
with certain documents in an attempt to show the mental status of the petitioner.
However all that can be deciphered therefrom is that the petitioner is suffering
from adjudgement disorder or anxiety. Whether such ailment leads to the
petitioner being unable to look after her interest or not cannot be determined from
the said documents.
8. A decree against a person of unsound mind and/or who is unable to look
after his/her interest is a nullity. In the face of the pleas as aforesaid having been
taken, no purpose would be served in proceeding with the suit without holding the
inquiry. Such inquiry does not necessarily mean reference to the medical
specialist. The trial court can direct the petitioner to appear before the court and
the court can on putting questions to the petitioner arrive at a finding as to whether
the petitioner is a person of unsound mind or incapable of looking after her
interest. Only if the trial court after holding such preliminary inquiry is not able to
reach a definite conclusion as to the mental status of the petitioner , is the trial
court to refer the petitioner to a medical specialist.
9. There is yet another aspect of the matter. If the petitioner is found to be a
person of unsound mind and/or not capable of looking after her interest, it is the
court which is to appoint her guardian. Merely because one of the daughters of the
petitioner chooses to represent her in the court, does not vest the said daughter
with any authority to represent the petitioner. The trial court appears to have
accepted the written statement filed by the daughter of the petitioner as the
guardian of the petitioner without arriving at any finding. Such written statement
filed by another could not be accepted and acted upon in the trial court without a
finding as to the mental status of the petitioner.
10. The petition is therefore allowed. The order impugned in the petition is set
aside. The trial court before proceeding further with the suit is directed to hold a
preliminary inquiry into the mental status of the petitioner and if finds the
petitioner to be of an unsound mind or incapable of looking after her interest, to,
after making inquiry of the near relatives of the petitioner, appoint one of them
who has no interest adverse to the petitioner, as guardian of the petitioner for
representing the petitioner before the trial court. Since the respondent has not
contested this petition, no orders as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
November 3, 2009
M
