Dr. Stya Paul vs The State & Ors.
2011 Latest Caselaw 1752 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+              IA No.10287/2010 in Test Case No.56/2009

                            Reserved on :       9th March, 2011
                          Date of decision:     25th March, 2011

DR. STYA PAUL                                   ..... Petitioner
                            Through Mr. H.L. Tiku, Sr. Adv. with
                                   Mr. Thakur Sumit, Adv.

                      versus

THE STATE & ORS.                                   .... Respondents

Through Mr. Rajiv Nayar, Sr. Adv.

with Mr. D. Pathak, Adv. & Mr. K. Datta, Adv. for APEEJAY.

Mr. Sudhir Nandrajog, Sr. Adv.

with Mr. P. Pradip Sharma, Adv. & Mr.Siddhartha Lodha, Adv. for D-5.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J

IA No.10287/2010

1. By this order, I propose to dispose of this application under

Order 32 Rule 3 and Order 32 Rule 15 of the CPC filed by

Ms. Sushma Berlia, daughter of Late Shri Stya Paul and Smt.

Rajeshwari Paul.

2. Before dealing with the rival contentions, certain essential

facts may be noted. Late Shri Payare Lal was blessed with three

sons, namely, Shri Jit Paul; Dr. Stya Pal (Petitioner herein now

deceased) and Lord Swraj Paul (respondent no.2) as well as three

daughters namely Smt. Prakash Wati Gupta (respondent no.3),

IA No.10287/2010 in Test Case No.56/2009 Page No.1 of 29 Smt.Bimla Devi (respondent no.4) and Smt. Kamla Jindal

(respondent no.5).

3. The petitioner state that Late Shri Jit Paul was single and

expired at Kolkata on 3rd June, 2009 leaving behind an extensive

estate including immovable properties at Delhi. The petitioner

and respondent nos.2 to 5 are his only surviving class II heirs.

On or about 9th November, 2009, Dr. Stya Paul filed the present

petition under Section 278 read with Section 218 of the Indian

Succession Act, 1925 praying for grant of Letters of

Administration of the estate of Late Shri Jit Paul to his brother

Late Shri Swraj Paul, respondent no.2.

4. An order dated 13th November, 2009 was passed by this

court directing issuance of notices to the respondents as well as

publication of the citation in "Indian Express" in its New Delhi

and Kolkata editions. Despite publication, no objections have

been filed by any person.

5. On 21st December, 2009 M/s Apeejay Pvt. Ltd. filed IA

No.16838/2009 in the present case contending that a Test Case

No.56/2009 had been filed by one M/s Kumar Brothers for grant

of letters of administration of the estate of the deceased in the

court of District Delegate at Alipore on 16th September, 2009;

that this filing was prior to the filing of the present case; and

that notice had been issued in the said case. Dismissal of the

present petition was consequently sought.

6. In the meantime, IA No.4809/2010 was filed in these

proceedings on or about 13th April, 2010 by Dr. Stya Paul under

Section 247 of Indian Succession Act praying for an ex parte

interim order for considering appointment of a fit and proper

IA No.10287/2010 in Test Case No.56/2009 Page No.2 of 29 person as the pendente lite administrator of the estate of the

deceased.

7. In the meantime, Dr. Stya Paul (petitioner herein) expired

on 7th June, 2010 leaving behind his widow Smt. Rajeshwari Paul

and a daughter, Ms. Sushma Berlia, as his surviving heirs. IA

No.8326/2010 has been filed by Sushma Berlia under Order 22

Rule 3 and Order 1 Rule 10 CPC inter alia praying for their

substitution as petitioner nos.1(a) & 1(b) in place of the

deceased petitioner.

8. The present application being IA No.10287/2010 has been

filed thereafter on or about 2nd August, 2010 under Order 32 Rule

3 and Order 32 Rule 15 of the CPC by Ms. Sushma Berlia inter

alia contending that consequent upon the death of her husband,

Smt. Rajeshwari Paul is under serious depression. It is further

stated that she was suffering from the Alzheimers disease which

has deteriorated her physical and mental condition; the same

has worsened and she is therefore unable to grasp matters.

It is submitted that on account of her inability to take a

decision in relation to the matter, it is necessary to appoint a

guardian ad litem for her.

9. To support her prayer Ms. Sushma Berlia, dauther of the

petitioner has also stated that she is staying with her mother

Smt. Rajeshwari Paul since the last more than two decades and

that Smt. Rajeshwari Paul is under her care; that Ms. Sushma

Berlia has no interest adverse to that of Smt. Rajeshwari Paul

and is consequently fit to be appointed as her guardian ad litem.

IA No.10287/2010 in Test Case No.56/2009 Page No.3 of 29 On these averments, Ms. Sushma Berlia has prayed in the

present application that she should be appointed as guardian ad

litem of Smt. Rajeshwari Paul. An alternative prayer is made that

in case this court adjudicates that the applicant is not a proper

person to be appointed, such other person as may be deemed fit

by this court, may be appointed as guardian ad litem of Mrs.

Rajeshwari Paul.

10. It is noteworthy that the application is supported by a

certificate dated 30th July, 2010 issued by Dr. Vijay Chandra,

M.B.B.S. (AIIMS), M.D. Neurology (U.S.A.), Ph.D. Johns Hopkins

University (U.S.A.), Certified Diplomate of the American Board of

Psychatry & Neurology. Dr. Chandra has issued the certificate to

the following effect:-

"Mrs. Rajeshwari Paul, 86 years, is suffering from Lewy Body Dementia, which is a variant of Alzheimer's disease.

In this condition, there is impairment of cognitive (intellectual) function. The patient is unable to grasp, analyze or understand situations. She is thus unable to make informed and appropriate decisions. The demise of her late husband has aggravated her condition.

She requires regular medical and nursing care."

11. As noted above, M/s Apeejay Pvt. Ltd. has filed IA

No.16838/2009 under Section 151 of the CPC objecting to the

maintainability of the main petition. Mr. Rajiv Nayar, learned

senior counsel appearing for Apeejay Pvt. Ltd. points out that the

applicant has placed a copy of the petition filed by M/s Kumar

Brothers, a partnership firm as a creditor, for grant of letters of

administration to the estate of Shri Jit Paul which was

IA No.10287/2010 in Test Case No.56/2009 Page No.4 of 29 registered as Case No.268/2009 before the District Delegate at

Alipore seeking satisfaction of the liabilities.

12. Mr. Sudhir Nandrajog, learned senior counsel appearing for

respondent no.5 and Mr. Rajiv Nayar, learned senior counsel

appearing for the Apeejay Pvt. Ltd. have submitted that Dr. Stya

Paul has been shown as one of the relatives of the deceased Shri

Jit Paul and arrayed as defendant no.1 in these proceedings.

Learned senior counsels have urged that upon demise of

Dr. Stya Paul, impleadment was sought of Smt. Rajeshwari Paul

& Smt. Sushma Berlia as his legal heirs. In these proceedings

also, an application was also filed under Order 32 Rule 3 CPC by

the defendant no.1(a) calling upon the court to make an inquiry

by the medical board by the Additional District Judge at Alipore

in OS No.10/2010 entitled M/s Kumar Brothers Vs. Stya Paul with

regard to the health of Smt. Rajeshwari Paul and her capability of

protecting her interest.

13. One important fact deserves to be noticed before

considering the rival contentions. The present application was

filed on 2nd August, 2010 and came up for consideration before

this court on 6th September, 2010. The observations of the court

in this order have material bearing on the question urged before

me and reads as follows:-

"IA No. 8326/2010 (for amendment)

Since the original petitioner died during the proceedings, his legal representatives are seeking to be substituted in his place and a subsequent application - I.A. No. 10287/2010 has been filed in respect of one of them, i.e. Mrs. Rajeshwari Paul stating that she is suffering from Alzheimers diseased.

In view of the submissions made, this Court is of the opinion that the other applicant

IA No.10287/2010 in Test Case No.56/2009 Page No.5 of 29 Mrs. Sushma Berlia should be impleaded as legal representative. This will, however not preclude - if the Court is satisfied that the other legal representative Mrs. Rajeshwari Paul has to be represented through guardian ad litem - from substituting her as well.

IA No. 8326/2010 is, therefore, partly allowed in the above terms.

IA No. 10287/2010 Issue notice. Counsel opposite accept notice and submits that reply will be filed to the application.

Test Case.56/2009 List on 22nd November, 2010."

14. In the meantime, on the application filed under Order 32 of

th e CPC, the court at Alipore recorded proceedings. On the 18th

of December, 2010, the following order was recorded by the

Additional District Judge, 11th Court, Alipore:-

"All parties are present.

Heard all sides on the ground of maintainability and also on the petition filed by the defendant No.1(a) under Order 32 Rule 3 and 15 of C.P.C.

The Learned Advocate for the plaintiff has urged the court to make an inquiry by a Medical Board to ascertains to whether Rajeswari Paul, mother of the defendant No.1(a) is really a patient of Alzheimer's disease or not.

The Learned Advocates of all the defendants including the defendant No.1(a) have shared this view and learned Advocate for the defendant No. 1(a) has prayed for constitution of such a Medical Board at an early date.

He further submits that the mother of the defendant No. 1(a) is 86 years old infirm 1ady and is not in a position to move eve and, therefore, the doctors of Kolkata have to go to Delhi for examination of the said patient and his client is ready to bear all the costs including Professional loss, food and lodging and Travelling Allowances.

Such proposal is innocuous and let this Court ask the director, IPGMER, Kolkata for

IA No.10287/2010 in Test Case No.56/2009 Page No.6 of 29 sending the names of the doctors one psychiatrist, one Neurologist and one Neuro Psychologist Positively by 15.1.2011.

Adjourn to 15.1.2011 for further hearing on maintainability ground and for further order awaiting the reply from the Director, I.P.G.M.E.R."

15. The present application is opposed by M/s Apeejay Pvt. Ltd.

(applicant in IA No.16838/2009) as well as by the respondent

no.5 Smt. Kamla Jindal who has filed an affidavit in response

denying the averments relating to the condition of

Smt.Rajeshwari Paul. Apart from the denial on facts, the

opposition primarily rests on the following three grounds:-

(i) That proceedings in OS No.10/2010 M/s Kumar Brothers Vs. Stya Paul under Section 218 of the Indian Succession Act before the District Judge, Kolkata are prior to the present petition and that main petition itself is not maintainable.

(ii) That in these proceedings, an order dated th 18 December, 2010 with regard to the condition of M/s Rajeshwari Paul was passed with the consent of Ms. Sushma Berlia.

(iii) It is urged that in view of the constitution of a medical board by the Additional District Judge, Alipore, this court does not have the jurisdiction to proceed for examination of Smt. Rajeshwari Paul. It is submitted that the same consent of Ms. Sushma Berlia has been reiterated in the order dated 5th March, 2011.

16. Right at the onset, it is essential to consider the scope of

proceedings under Order 32 Rule 3 of the CPC read with Order

32 Rule 15. These provisions read as follows:-

"Order 32

Guardian for the suit to be appointed by Court for minor defendant.- (1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint

IA No.10287/2010 in Test Case No.56/2009 Page No.7 of 29 a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in this behalf, or, where there is no such guardian (upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian) of the minor, or, where there is (no father mother or other natural guardian), to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

xxx

Rule 15

Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind- Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."

Statutory provisions thus cast solemn duty on the court to

conduct inquiry and to assess the ability of a party to the

proceedings who is stated to be suffering from a disadvantage or

a disability to protect his interest.

17. Mr. H.L. Tiku, learned senior counsel for the petitioner has

placed the judgments reported at (2003) 3 SCC 225

Kasturibai Vs. Anguri Chaudhary; 2008 (102) DRJ 86 (DB)

IA No.10287/2010 in Test Case No.56/2009 Page No.8 of 29 Anuradha Jha Vs. Santosh Singh; AIR 1973 Bombay 276

Som Nath Vs. Tipanna Ram Chandra; 2006 (VII) AD

(DELHI) 857 Shailendra Bhargava Vs. Kanhiyalal

Bhargava; 2009 (V) AD (DELHI) 545 Surinder Kaur Vs.

Sardar Rajdev Singh & 114 (2004) DLT 222 Jai Prakash

Goel Vs. State wherein the principles with regard to the duty of

the courts as well as the scope of inquiry under Order 32 have

been laid.

18. In (2003) 3 SCC 225 Kasturibai Vs. Anguri

Chaudhary while referring to the provisions of Rule 15 of Order

32 of the CPC, the court observed as follows:-

"11. On a bare perusal of the said provision, it is evident that the Court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provided that even if a person is not so adjudged but is found by court on inquiry to be incapable to protecting his or her interest when suing or being sued or reason of any mental infirmity, an appropriate order thereunder can be passed. The respondent did not contend that appellant No. 1 herein is of unsound mind. As noticed hereinbefore, the respondent herself had filed an application before the trial court for holding an inquiry to the effect that she suffers from mental infirmity.

12. The learned trial court refused to do the same and in that view of the matter the High Court, in our opinion, while setting aside the said order could only issue a direction directing the learned trial Judge to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent herein was incapable of protecting her interest by reason of any mental infirmity or 'not. As no such inquiry was held, there cannot be any doubt whatsoever that the learned Single Judge committed a jurisdictional error in passing the impugned judgment which, the Division Bench as noticed hereinbefore upheld."

19. On the issue of unsoundness of mind and the nature of the

inquiry in the judgment reported at AIR 1973 Bombay 276

IA No.10287/2010 in Test Case No.56/2009 Page No.9 of 29 Som Nath Vs. Tipanna Ramchandra Jannu, the court has set

down the principles and parameters of the inquiry by the court

as follows:-

"17. The above discussion clearly leads to the logical conclusion that when the plaint is being examined for the purpose of admission, if it contains a statement as required by clause (d) of Rule 1 of Order 7 that the plaintiff is a person of unsound mind and that a next friend is suing on his behalf, the court must at once hold an inquiry. It is the duty of the court to do so and it is not necessary for the next friend to make a separate application for that purpose. This inquiry should ordinarily include the calling of the plaintiff himself and questioning him in Court. If the Court entertains doubt about the mental capacity or the soundness of his mind, it is open to the Court to take further assistance in the form of medical examination and the evidence of the doctor under whose observations the plaintiff may be kept. The quantum and extent of inquiries must be left in each case to the circumstances prevailing. There may be a plaintiff who on immediate view may appear to be a person of unsound mind, and the Court may not need much evidence beyond recording of the questions put to and the answers given by the person concerned. There can be other cases which are not so clear and more evidence may be necessary. However, apart from the total extent of the evidence that might be led, we would suggest that as a matter of strong commonsense approach, the plaintiff who is alleged to be of unsound mind should be invariably called for being questioned when the case falls under the second part of Rule 15 of Order 32. This inquiry is made "for the purpose of recording a finding by the court that the plaintiff is a person of unsound mind, or a person mentally so infirm as to be incapable of protecting his own interests. The provisions of Rule 15 of Order 32 makes it possible for a next friend to sue on behalf of an adult person as a next friend only when the person is either so adjudged by a court of competent jurisdiction, or if not so adjudged, is found by the court on inquiry to be so. That is the foundation, prima facie, for a next friend to avail and proceed with the suit. Such inquiry is obviously an ex parte inquiry for the court to give a finding and to admit the plaint and issue the process to the other side."

(Underlining furnished)

IA No.10287/2010 in Test Case No.56/2009 Page No.10 of 29

20. Mr. Rajiv Nayar, learned senior counsel appearing for M/s

Apeejay Pvt. Ltd. has urged at length that judicial comity

mandates that this court stays its hands so far as inquiry into the

health and ability of Smt. Rajeshwari Paul to prosecute this case

is concerned. Mr. Nayar, learned senior counsel and Mr. Sudhir

Nandrajog, learned senior counsel have placed reliance on the

pronouncement reported at (2007) 5 SCC 510 India Houshold

& Healthcare Limited to urge that a medical board having

been constituted and the court at Alipore having commenced the

inquiry, this court has no jurisdiction to proceed in the matter

and is required to await the outcome of the inquiry by the

learned Additional District Judge which is seized of a previously

instituted petition.

21. Mr. H.L. Tiku, learned counsel for the petitioner has

vehemently disputed that the proceedings at Kolkata are not

prior. It has been urged that the petition at Kolkata was filed by

M/s Kumar Brothers before the District Delegate, Alipore, Kokata.

In these proceedings, an order was passed on 25th November,

2009 whereby it was held that the petitioner before the District

Delegate, Alipore was incompetent and the petition was returned

to the petitioner for filing along with the proper endorsement

before the District Judge, Alipore. It is submitted that the

petition was filed before the District Judge only on 22 nd

December, 2009 whereupon it has been registered as OS

No.66/2009. It is submitted that in this background, the present

petition having been filed on 3rd November, 2009, the pending

petition at Kolkata is not prior to the instant case.

IA No.10287/2010 in Test Case No.56/2009 Page No.11 of 29

22. Learned senior counsel for the petitioner has vehemently

contended that the proceedings initiated at Kolkata are collusive.

Reliance has been placed on the provisions of Section 278 of the

Indian Succession Act to contend that the deceased had rights,

title and interest in immovable properties in Delhi and therefore,

this court has the jurisdiction to entertain and adjudicate upon

this issue.

23. For the reason that one of the persons namely Smt.

Rajeshwari Paul is not represented before this court, I am not

opining on this objection pressed by Mr. Nayar, learned senior

counsel, at this stage which would be considered after ensuring

adequate and appropriate representation to her; grant of hearing

in the present matter and adjudication only thereafter.

24. In any case, the consideration by this court on 6th

September, 2010 on the issue of health of Smt. Rajeshwari Paul

is certainly prior to 18th December, 2010 by the Kolkata court.

25. In the pronouncement of the Supreme Court reported at

(2007) 5 SCC 510 India Houshold & Healthcare Limited,

the court was concerned with the question of validity or

otherwise of the arbitration agreement. The issue with regard to

the validity of the arbitration agreement was raised in a suit filed

by the respondent before the Madras High Court which had

passed interim orders of injunction against the plaintiff from

taking any action in terms of the agreement including those

pursuant to the Arbitration clause. The petitioner did not seek

modification of the order of injunction. The interim order of

injunction was confirmed by the order dated 21st January, 2006.

Despite this order of injunction, a petition was filed before the

IA No.10287/2010 in Test Case No.56/2009 Page No.12 of 29 Supreme Court of India under Section 11 of the Arbitration &

Conciliation Act, 1996 for appointment of an Arbitrator. In this

context that the Supreme Court had observed that in view of the

restraint order dated 21st January, 2006, the court while

performing judicial function, would ordinarily not pass an order

which should make one of the parties to the lis violate the order

passed by another court.

The instant case raises no such issue.

26. The proceedings recorded by this court on 6th September,

2010 clearly suggest that a person other than Ms. Sushma Berlia

could very well be ultimately appointed as guardian ad litem

keeping in view the claimed interest of the plaintiff no.2-

applicant herein and the prime consideration being the welfare,

well being and interest of Smt. Rajeshwari Paul.

27. There is yet another aspect of this matter. Advances in

medical sciences have led to developments of several scientific

tests which include pathological, radiological, neurological and

other tests which would aid the medical experts in evaluation of

a person's disease as well as mental status. If the tests are

needed to evaluate the condition of Smt. Rajeshwari Paul, the

medical experts from Kolkata would find it difficult to arrive at an

authoritative conclusion in view of their inability to effect such

tests at Delhi.

28. It also needs no elaboration that environmental placement

of a patient may impact the mental status of the person. It may

also effect the severity of the person's physical or mental

condition. Likewise the responses of a patient, especially

someone suffering from an neurological disease, may vary

IA No.10287/2010 in Test Case No.56/2009 Page No.13 of 29 depending on her familiarity of the doctors/physician examining

her.

29. The observations of the Division Bench of the Bombay High

Court in para 18 of AIR 1973 Bom 276 Somnath Vs. Tipanna

Ram Chandra would also shed light with regard to the issue of

two inquiries which read as follows:-

"18. We may at once point out that such an inquiry and finding may be good for the purpose of the next friend to present the suit and obtain first order of the court. This finding of the court does not and cannot bind the defendant who may after entering appearance point out to the court that it has been misled into giving a wrong finding and the defendant was willing to prove that the plaintiff was a person who was capable of protecting his own interests. If such a challenge is held out in a given case, the issue is still open between the parties. The defendant is entitled to prove this allegation. The court cannot shut out an inquiry simply because on the earlier inquiry by it, it gave a finding as contemplated by one part of Rule 15 of Order 32. If a defendant holds out such a challenge and succeeds in proving what he alleges, the consequences are obvious, and we have already indicated what the court will do when on its own inquiry it found that the plaintiff was a person capable of defending his own interest. The same consequence might follow if the defendant is able to satisfy the Court that the plaintiff was a person who was capable of defending his interests."

30. So far as the nature of the inquiry is concerned, in 2006

(VII) AD (Delhi) 857, Shailendra Bhargava Vs. Kanhiyalal

Bhargava, the court had called the person concerned to be

produced in chambers and had conducted the inquiry itself.

It is open to this court also to do so after receipt of the

report of the medical experts.

31. It is stated that Smt. Rajeshwari Paul is residing within the

jurisdiction of this court.

IA No.10287/2010 in Test Case No.56/2009 Page No.14 of 29

32. It needs no elaboration that medical science is not a

definite science. The mental health of a person is not stationary

and would change.

It cannot be challenged that the medical condition of a

person may improve or deteriorate at a pace unknown. This

could even require fresh evaluation subsequent to a medical

examination at a later stage of the same litigation. However, the

duty and responsibility of the court in this regard cannot be

assailed or disputed.

33. It is also an established fact that medical condition may

vary between two medical examinations of a person which are

separated by time on account of several variables and

circumstances beyond the control of any person. Such change

in condition would not render bad an evaluation of a person's

fitness or unfitness at a particular point of time.

34. The record placed before this court would show that

despite passage of almost three months since 18th December,

2010, no board has been constituted till date. The court is only

awaiting suggestion of names by the Director of the IPGMER.

35. In these circumstances, fresh orders were passed on 5 th

March, 2011 which is to the following effect:-

"Ld. lawyers for the plaintiff, defendant no.1a, defendants 4 and 6 are present. No reply as yet from the Director, Bangur Institute of Neurology regarding the names of the doctors for the purpose of examination of one Rajeshwari Paul.

Issue reminder. Fixing 21/03/11 for order. At the time of commencement of hearing Ld. Lawyer for the defendant no.4 submits that a self same petition u/o 32 Rule 3 & 15 of C.P.C.

has been filed before the Hon'ble Delhi High Court in Test Case No.56/2009 and, therefore,

IA No.10287/2010 in Test Case No.56/2009 Page No.15 of 29 the court should decide first as to whether two petitions at two forums can simultaneously be heard. Ld. Laywer for the defendant no.1a by filing a copy of the order passed by Hon'ble Mr.Justice S.Ravindra Bhatt on 6-09-2010 submits that the question as to whether Mrs.Rajeswari Paul is a patient of Alzheimers disease or not is also under consideration before the Hon'ble Delhi High Court. He admits that his client has no objection if a team of doctors from Kolkata go to Delhi for examination of the said patient. He argues that there is no harm if the self same petition is heard by another Higher Court.

This Court is also of the opinion that there is no harm if similar petition is heard by the Hon'ble High Court at Delhi. However, the team of doctors from Kolkata will be sent for examination of the patient.

Heard all the parties on the point of maintainability at length. Adjourned to 21/3/11 for order."

(Emphasis supplied)

Interestingly, the above order notices this courts' order

dated 6th September, 2010 and the pendency of the present

case.

36. Contrary to the objections made by the respondents with

regard to conduct of the inquiry by this court, the court of

Additional District Judge has clearly recorded that there would

be no harm if a similar petition is heard by this court. Of course,

the court has been of the view that the team of doctors from

Kolkata would be sent for examination of the patient.

37. It is noteworthy that the trial court has, however,

proceeded to hear the matter on the issue of maintainability of

the petition without one party Smt. Rajeshwari Paul being

represented before it and without the issue of representation of

all the parties before it being decided. A reminder has also been

IA No.10287/2010 in Test Case No.56/2009 Page No.16 of 29 issued to the Director of the Bangur Institute of Neurology

regarding the name of doctors for the purpose of examination of

Smt. Rajeshwari Paul.

38. The order dated 18th December, 2010 of the learned ADJ

notices the submission of all defendants for constitution of a

medical board to ascertain as to whether Smt. Rajeshwari Paul

who is the mother of the defendant no.1, was a patient of

Alzheimer disease. The court appears to have accepted the

submission on behalf of counsel for defendant no.1(a) that she is

an 86 years of old infirm lady and not in a position to move even.

In this background, the parties prayed for constitution of a

medical board and that doctors from Kolkata would have to come

to Delhi. Consequently, the court asked the Director, IPGMER,

Kolkata for sending the names of one psychiatrist, one

neurologist and one neuropsychiatrist to the court positively by

15th January, 2011. The parties had stated that the matter rested

at this stage even when hearing in the present application had

concluded.

39. The above narration would show that in view of the

agreement of the parties and their stand before the court, there

has been no adjudication on any issue including the nature of the

board which shall examine Smt. Rajeshwari Paul.

In any case, no effective proceedings towards evaluation of

the status of Smt. Rajeshwari Paul since 18th December, 2010

have taken place till date.

40. Smt. Rajeshwari Paul is stated to be so infirm that she

cannot go to the court of Additional District Judge at Kolkata.

The orders recorded by the learned Judge at Kolkata suggests

IA No.10287/2010 in Test Case No.56/2009 Page No.17 of 29 that this is an admitted position even so far as the present

respondent no.5 as well as the other opponents to the present

application are concerned.

41. It is noteworthy that before the Additional District Judge,

Kolkata, the matter is at the stage of receipt of recommendations

of names of persons who would be considered for appointment

as members of the board. The matter may yet go back and forth

between the Director of IPGMER, Kolkata and the court on the

issue of the appropriate constitution. The willingness of the

doctors to come to Delhi from Kolkata would require to be

ascertained. Looked at from any angle, it cannot be held that

this court is bound by a board which is yet to be constituted in

the proceedings at Alipore, Kolkata.

42. It has also been argued that the orders of the court

recorded on 18th December, 2010 and 5th March, 2011 at Kolkata

are premised on consent of the applicant Ms. Sushma Berlia

which would bind her in these proceedings.

43. In 114 (2004) DLT 222 Jai Prakash Goel Vs. State, this

court has reiterated the aforegoing principles. The court has

placed reliance on the principles laid down by the Supreme Court

in Kasturibai Vs. Anguri Chaudhary (Supra) to the effect

that even if a person is not adjudged to be of unsound mind, but

is found by the court on inquiry to be incapable of protecting her

interest when suing or being sued for reasons of mental inability

and infirmity, appropriate order thereunder can be passed. Thus,

the mandate of the statutory provision and purpose for its

incorporation is that the court has to conduct an inquiry with

IA No.10287/2010 in Test Case No.56/2009 Page No.18 of 29 regard to the mental incapacity of the person to do so and arrive

at a conclusion whether the person is incapable of protecting his

interest when suing or being sued

44. The parameters of evaluation of the condition have also

been the subject matter of evaluation. In Jai Prakash Goel

(Supra) this court observed that there is a "vast difference

between mental unsoundness and incapacity by reason of

mental infirmity, the latter being of a lesser degree......."; that

the court would be competent to pass an order as soon as it is

satisfied as to the party's mental competence".

45. In the given context the applicable principles have been

succinctly stated in the judgment dated 27th May, 1977 rendered

by H.L. Anand, J in CP No.64/1976 & CA No. 567/1976 entitled

Sh. B.K. Khanna vs. Sh. N.K. Khanna & Ors. reported at AIR

1978 Delhi 48, the court was construing the provisions of Order

32 Rule 15 and held that the provisions "cast a mandatory duty

on the court to take steps to ensure proper representation for

such persons so as to ensure that their interest in, relation to the

proceedings are fully protected. These provisions are a

legislative re-cognition of the well-known principle' that the

State, as indeed the Court, which is part of the judicial wing of

the State ' is in locus parentis to its citizens, who are either

minors or are incapable of protecting their interests in judicial

proceedings by reasons of unsoundness of mind or mental

infirmity."

The Supreme Court further held as follows :-

"10. ........By virtue of the provisions of Rule 15, the provisions of Rules 1 to 14 of O. 32, relating to minors, are made applicable, so far as may be, "to

IA No.10287/2010 in Test Case No.56/2009 Page No.19 of 29 persons adjudged to be of unsound mind and to persoi-15 who though not so adjudged are found bi the court, on enquiry, by reasons of unsoundness of mind or mental infirmity to be incapable of protecting their interests when suing or being sued". The,, provisions contained in Order 32 not only empower the court to take appropriate empower steps where a party to the proceedings is a minor or a person who is incapable of protecting his interest whether by reason of unsoundness of mind or mental, infirmity, but also cast a mandatory duty' on the court to take steps to ensure proper representation for such persons, as to ensure that their interest in relation to the proceedings are fully protected. These provisions are a legislative re-cognition of the well-known principle' that the State, as indeed the Court, which is part of the judicial wing of the State ' is in locus parentis to its citizens, who are either minors or are incapable of protecting their interests in judicial proceedings by reasons of unsoundness of mind or mental infirmity. There can thereforee, be no doubt that before the Court proceeds with a suit or other proceedings, in which one of the parties is either a minor or otherwise incapable of protecting his interests, the Court is bound to hold a preliminary enquiry and, if satisfied that the conditions of the relevant rules are attracted, to make appropriate directions with regard to the proper representation of such persons. In such a case it would not be open to the court to consider the suit or the other proceedings before complying with these mandatory requirements.

11. ........Rule 15 would not be attracted unless the person said to be incapable of protecting his interest had been "adjudicated to be of unsound mind" This contention clearly overlooks the later part of the Rule which envisages the case of "persons who though not so adjudged are found by the Court on inquiry... ... ... to be incapable of protecting their interests when suing or being sued". A prior adjudication with regard to the state of mind of a person is, thereforee, not necessary for the court to invoke the provision of R. 15 of O.

32."

In para 12 of the judgment, the court further held as follows:-

"12. ........... the language of Rule 15 leaves no manner of doubt that every court, which is seized

IA No.10287/2010 in Test Case No.56/2009 Page No.20 of 29 of proceedings in which there is a person who is said to be incapable of protecting her interests in relation to the proceedings. has the necessary power, as indeed a duty, to hold a preliminary inquiry to find if such a person was incapable and to take such steps as may be necessary to protect his interest."

46. It is therefore well settled that so far as the representation

of a child or a mentally challenged person is concerned, an

independent and impartial evaluation has to be carried out by

the court after conducting an inquiry in a manner deemed fit and

proper before proceeding in. Having arrived firstly on the

conclusion that a party is mentally incapable and is unable to

prosecute or defend the case or against it, the court would thus

proceed to appoint a fit person as guardian ad litem. One of the

essential requirements for such appointments is the fact that the

guardian ad litem does not have any interest adverse to that of

the applicant.

47. The submissions recorded in the order dated 18th

December, 2010 on behalf of Smt. Sushma Berlia and the impact

of the order dated 5th March, 2011 has to be construed against

the afore-noticed statutory provisions and legal principles.

48. The requirement of the inquiry under Rule 15 of Order 32

can be sourced to the rights of every person under the

Constitution of India to be given equal opportunity in court

proceedings to prosecute their claim or defend the case. The

inquiry by the court which is postulated under Rule 15 is to

enable the court to adjudge as to whether the person who is

before the court is capable or incapable of protecting their

interest by reasons of unsoundness of mind or mental infirmity.

IA No.10287/2010 in Test Case No.56/2009 Page No.21 of 29 Rule 15 treats a person of unsound mind at par with a minor. It

is noteworthy that it is not only persons who are of unsound

mind but also persons who are incapable by reason or any

mental infirmity, of protecting their interests when suing or being

sued who are covered.

The application seeking appointment of a guardian ad

litem on her behalf thus cannot be rejected merely because

Apeejay Pvt. Ltd. has filed IA No.16838/2009 raising an objection

to the maintainability of the main case or that Sushma Berlia

made the statement recorded on 18th December, 2010 at

Kolkata.

49. Any two persons may collude and thereby severely impair

the rights of third party who is mentally challenged. In view of

the above narration, no legal ground has been pointed out which

could preclude this court from exercising jurisdiction under Rule

15 of Order 32 of the CPC and conducting the inquiry postulated

in the order dated 6th September, 2010 for independently

evaluating the ability of Smt. Rajeshwari Paul to conduct the

present case.

50. The court when deciding such an application is only

concerned with the welfare, interest and protection of the rights

of the person who is stated to be mentally incapacitated. The

consent of other parties to the lis would be irrelevant for

consideration of this issue. It is noteworthy that this court has no

material to assess the intention which persuaded the parties to

express consent to the medical examination. There is also no

evaluation of other important issues which the court would

IA No.10287/2010 in Test Case No.56/2009 Page No.22 of 29 consider while appointing a guardian ad litem of the nature of

their interest vis-a-vis the interest of the person concerned.

51. In the instant case, the submission with regard to the

appointment of the medical board in the proceedings in Kolkata

has been made by Ms. Sushma Berlia as Smt. Rajeshwari Paul is

stated to be incapable of giving her consent. The consent given

by a person seeking to be appointed guardian ad litem with

regard to a medical examination of the person, can not bind the

person concerned or impact the jurisdiction of or the

consideration by this court of the ability of the proposed legal

heir to conduct the case. It also does not bar this court from

conducting the enquiry and appointing a medical board for the

purposes of assessing the same.

52. I may now deal with the objection of Mr. Rajiv Nayar,

learned senior counsel appearing for Apeejay Pvt. Ltd., the

applicant in IA No.16838/2009, that the main proceedings before

this court are without jurisdiction and consequently, this court

cannot proceed in the matter even with regard to the issue of the

competency of Smt. Rajeshwari Paul to conduct her case. This

objection goes to the merits of the matter.

53. As noticed above, IA No.8326/2010 has been necessitated

for the reason that Stya Paul, the petitioner who brought the

present petition, expired after its filing, it seeks leave to bring on

record the fact that the deceased petitioner is survived by a

widow Smt. Rajeshwari Paul and her daughter Ms. Sushma Berlia.

54. It has been brought on record by Ms. Sushma Berlia that

her mother is an 86 year old lady who is suffering from

Alzheimers disease and for the stated reasons, is incapable of

IA No.10287/2010 in Test Case No.56/2009 Page No.23 of 29 taking decisions or prosecution of the present case. These facts

are disputed by the respondents.

55. Adjudication on the issue as to whether the proceedings

which were initiated by Stya Paul are legally maintainable or not,

requires hearing all parties on the issue. The petitioner, now

admittedly deceased, is survived by legal heirs, is presumed to

have opposed this objection. As such, the parties supporting

maintainability of the case, are entitled to be heard in the

matter.

56. The applicant in IA No.82326/2010 submits that Smt.

Rajeshwari Paul is the widow of the deceased petitioner; would

be an heir of his estate and has a legal right to be heard on the

objection of the respondents with regard to the maintainability of

the petition. Smt. Paul's ability to prosecute the case is in issue.

Even if the legal heir would wish to concede the objection, an

informed view has been taken thereon. Such a decision can only

be taken by a person capable of taking the same.

57. In Sh. B.K. Khanna vs. Sh. K.N. Khanna &

Ors.(supra), this court clearly held that "there can

therefore, be no doubt that before the Court proceeds with

a suit or other proceedings, in which one of the parties is

either a minor or otherwise incapable of protecting his

interests, the Court is bound to hold a preliminary enquiry

and, if satisfied that the conditions of the relevant rules are

attracted, to make appropriate directions with regard to the

proper representation of such persons. In such a case it

would not be open to the court to consider the suit or the

IA No.10287/2010 in Test Case No.56/2009 Page No.24 of 29 other proceedings before complying with these mandatory

requirements."

58. In 2000 V AD (Delhi) 545 Surinder Kaur Vs. Sardar

Rajdev Singh, the application for constitution of a medical

board to determine the alleged mental infirmity of the defendant

no.1 was rejected by the court on the ground that the defendant

no.1 merely suffered from old age and though not capable of

actively participating in business, but was capable of looking

after his day to day affairs. However, with regard to the spirit,

intendment and purpose of the statutory provisions and the

scope of inquiry, it was observed as follows:-

"10. xxx These provisions are a legislative recognition of the well-known principle that the State, as indeed the Court, which is part of the judicial wing of the State, is in locus parentis to its citizens, who are either minors or are incapable or protecting their interests in judicial proceedings by reasons of unsoundness of mind or mental infirmity. There can, thereforee, be no doubt that before the court proceeds with a suit or other proceedings, in which one of the parties is either a minor of otherwise incapable of protecting his interests, the court is bound to hold a preliminary enquiry and, if satisfied that the conditions of the relevant rules are attracted, to make appropriate directions with regard to the proper representation of such persons. In such a case it would not be open to the court to consider the suit or the other proceedings before complying with these mandatory requirements."

59. It cannot be denied that every party to a case has a

constitutional right to be heard in support of his/her case. So far

as a person who is legally incompetent or otherwise incapable

from effectively prosecuting a claim or defend a case, this court

is duty bound to ensure that the party is given equal and

effective representation, just as other parties who are not so

disadvantaged. In this background, certainly Smt. Rajeshwari

IA No.10287/2010 in Test Case No.56/2009 Page No.25 of 29 Paul cannot be non-suited without her being given a fair and

proper opportunity in supporting either the maintainability of the

case or objections of the defendants.

60. In this behalf, reference can be made to Section 141 of the

Code of Civil Procedure, 1908 which provides that the procedure

prescribed in the Code with regard to suit shall be followed as far

as it can be made available in all proceedings in any court to civil

jurisdiction. Proceedings would obviously include consideration

of the application raising the objection with regard to

maintainability of the main petitions which have been filed in the

instant case.

61. In the given circumstances, in case it is found that Smt.

Rajeshwari Paul, legal heir is legally incompetent of prosecuting

the case, is entitled to an effective representation by

appointment of a guardian ad litem who would pursue her

defence of the objection on merits taken by the respondents or

take a considered view on conceding the same.

62. The importance of the inquiry which is to be conducted by

the court cannot be sufficiently emphasised. Passing of an order

appointing a guardian ad litem has an extremely serious

consequence inasmuch as it results in the court returning a

finding with regard to the ability or inability of a person to

prosecute his own case. The consequences of an order finding

the person incapable of prosecuting the case results in his right

to conduct the litigation being taken away from him. With regard

to the evaluation of a court to conduct the postulated inquiry,

reference can usefully be made to a pronouncement of the

Andhra Pradesh High Court reported at AIR 1969 AP 362

IA No.10287/2010 in Test Case No.56/2009 Page No.26 of 29 Durvuri Papi Reddi & Ors. vs. Duvvuri Rami Reddi wherein

the court held as follows :-

"The decision under Order 32 Rule 15 was one fraught with serious consequences, as it resulted in the rights of a party to conduct his own litigation being taken away, and the guardianship of another forced upon him, and if the enquiry is contemplated by Order 32 Rule 15 C.P.C. was not complied with, the court acts with material irregularity and illegality in the exercise of its jurisdiction."

It is evident that this court would fail in performance of

judicial duty in case the inquiry was not proceeded with.

63. The All India Institute of Medical Sciences ("AIIMS"

hereafter) at New Delhi is a premier institution of repute in this

city with specialists and super-specialists in every medical

speciality. The doctors at this Institute are recognised for their

expertise, ability and credibility. In view thereof, I propose to

direct constitution of a Board by medical experts from this

hospital with liberty to join the treating doctor(s).

64. In view of the above, it is directed as follows:-

(i) The Medical Superintendent of AIIMS shall constitute a

Board consisting of one psychiatrist, one neurologist and one

neuropsychiatrist for the purposes of conducting an examination

of Smt. Rajeshwari Paul and submitting a report to this court with

regard to her mental status.

(ii) Such Board shall be constituted within a period of one

week of the receipt of the order and the date and time of its

proceedings shall be intimated to the Registrar (Original) of this

court who shall inform the counsel for the parties.

IA No.10287/2010 in Test Case No.56/2009 Page No.27 of 29

(iii) It shall be open for the Board to conduct such test(s) as

may be required for arriving at a definite conclusion with regard

to ailment of Smt. Rajeshwari Paul as well as her mental

condition.

(iv) Ms. Sushma Berlia shall be responsible for all expenses

incurred in the examination and tests performed on Smt.

Rajeshwari Paul which shall be communicated to her by the said

Board and are payable to the AIIMS for the conduct of such tests.

(v) The amounts shall be deposited by Ms. Sushma Berlia

within three days of the communication of the said expenses.

(vi) The Board shall give a specific finding on the issue as to

whether Smt. Rajeshwari Paul is suffering from Alzheimers

disease, consequences thereof and her physical and mental

condition and ability.

(vii) In case necessary, it shall be open for Ms. Sushma Berlia to

utilize the facility of an ambulance and to cause the production

of Smt. Rajeshwari Paul before the Board and for AIIMS for

performance of the tests. She is permitted to make a request in

writing in this behalf to the Medical Superintendent of the All

India Institute of Medical Sciences who may permit the same

against payment of charges by her.

(viii) It shall be open for the Board to join the treating doctor(s)

of Smt. Rajeshwari Paul in their deliberations whose names shall

be informed by Smt. Sushma Berlia to the Board. She shall also

bear their expenses.

(ix) The Board shall complete its examination and proceedings

within four weeks of its constitution and submit a report. The

report by the Board shall be forwarded to this court within six

IA No.10287/2010 in Test Case No.56/2009 Page No.28 of 29 weeks of the receipt of the order passed by the Medical

Superintendent.

(x) The Registry shall forthwith communicate this order to the

Medical Superintendent of the All India Institute of Medical

Sciences.

This application is allowed in the above terms.

GITA MITTAL, J MARCH 25th , 2011 aa

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