Madhya Pradesh High Court
Dayaram vs Smt Sukka Bai on 16 June, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 16th OF JUNE, 2023
MISC. PETITION No. 978 of 2021
BETWEEN:-
1. DAYARAM S/O HARDEV GURJAR, AGED
ABOUT 65 YEARS, OCCUPATION:
AGRICULTURE VILLAGE- BHAWARASA,
TEHSIL KHATEGAON (MADHYA PRADESH)
2. KRISHNA BAI W/O CHAMPALAL GURJAR,
AGED ABOUT 30 YEARS, OCCUPATION:
HOUSEHOLD VIL DULWA TAPPAR TAH
KHATGAON (MADHYA PRADESH)
3. BHAGWATI BAI W/O PRAHALAD GURJAR,
AGED ABOUT 28 YEARS, OCCUPATION:
HOUSEHOLD VIL. DULWA TAPPAR TEH
KHATEGAON (MADHYA PRADESH)
4. SHANTABAI W/O SHRINIWAS GURJAR, AGED
ABOUT 25 YEARS, OCCUPATION:
HOUSEHOLD VIL. JAMNER TAH
KHATEGAON DIST DEWAS (MADHYA
PRADESH)
5. GAYATRIBAI W/O GORELAL GURJAR, AGED
ABOUT 23 YEARS, OCCUPATION:
HOUSEHOLD VIL. NEMAWAR TAH.
KHATEGAON (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI JITENDRA BHARAT MEHTA, ADVOCATE)
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 19-06-2023
18:28:30
2
AND
1. SMT SUKKA BAI W/O SHRIKISHAN GURJAR,
AGED ABOUT 75 YEARS, OCCUPATION:
NOTHIN VILL. BHERUPURA, TEHSIL SATWAS
(MADHYA PRADESH)
2. BALRAM S/O SHRIKISHAN GURJAR, AGED
ABOUT 55 YEARS, OCCUPATION:
AGRICULTURE VILL. BHERUPURA TAH
SATWAS (MADHYA PRADESH)
3. GOVIND S/O SHRIKISHAN GURJAR, AGED
ABOUT 45 YEARS, OCCUPATION:
AGRICULTURE VILL BHERUPURA TEH
SATWAS DIST DEWAS (MADHYA PRADESH)
4. PURUSHOTTAM S/O SHRIKISHAN GURJAR,
AGED ABOUT 35 YEARS, OCCUPATION:
AGRICULTURE VILL. BHAWARAS TAH
KHATEGAON (MADHYA PRADESH)
5. DEVKIBAI D/O RAMBAKAS GURJAR, AGED
ABOUT 75 YEARS, OCCUPATION:
HOUSEHOLD VILL BHERUPURA TAH
SATWAS DIST DEWAS (MADHYA PRADESH)
6. STATE OF M.P. THR COLLECTOR DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A. S. GARG, SENIOR ADVOCATE WITH SHRI SAPNESH
KUMAR JAIN, ADVOCATE)
..................................................................................................................................
This petition coming on for admission this day, the court
passed the following:
ORDER
Heard finally, with the consent of the parties.
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 19-06-2023
18:28:30
2] This miscellaneous petition has been filed by the
petitioners/plaintiffs under Article 227 of the Constitution of India
against the order dated 29.01.2021, passed in Civil Suit No.15-
A/2014 by II Civil Judge, Class-I, Khategaon, District Dewas
whereby, on a remand made by the District Appellate Court vide
order dated 10.01.2020, whereby it was directed to the learned
Judge of the trial Court to proceed further with the matter after due
inquiry under Order 32 Rule 15 of CPC regarding the mental state
of Devkibai @ Sukabai, who is respondent No.4A in the present
petition, the learned Judge of the trial Court, after making certain
queries from the person concerned viz., Devkibai, has arrived at a
conclusion that she is of unsound mind.
3] Shri Jitendra Mehta, learned counsel for the petitioners has
submitted that the learned Judge of the trial Court has erred in not
proceeding in accordance with Order 32 Rule 15 of CPC, which
contemplates due inquiry and thus, without even examining the
mental status of the respondent No.4A through a Medical Board, the
Court has himself come to a conclusion that she is of unsound mind.
In support of his submissions, Shri Mehta has relied upon a decision
rendered by the Supreme Court in the case of Kasturi Bai and
others Vs. Anguri Choudhary reported as AIR 2003 SC 1773
paras 11 and 12. Thus, it is submitted that the impugned order be set
aside and the matter be remanded back to the trial Court for
appropriate inquiry, in accordance with law.
4] Senior counsel for the respondents has opposed the prayer,
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 19-06-2023
18:28:30
however, it is not denied that the learned Judge of the trial Court has
decided the issue of unsoundness of respondent No.4A on his own.
5] Heard. On due consideration of submissions and on perusal
of the record as also the decision rendered by the Supreme Court in
the case of Kasturi Bai and others (supra), a perusal of the
impugned order clearly reveals that the learned Judge of the trial
Court himself has asked certain questions from Devkibai to arrive at
a satisfaction regarding the mental state of Devkibai, the respondent
No.4A, and has appointed a guardian for her, which in the
considered opinion of this Court cannot be countenanced in the eyes
of law as the appropriate inquiry as contemplated under Order 32
Rule 15 of CPC has not been conducted. In this regard, the Supreme
Court in the case of Kasturi Bai and others (supra) has held as
under:-
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
provides that even if a person is not so adjudged but is found
by court on inquiry to be incapable of protecting his or her
interest when suing or being sued by 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,
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 19-06-2023
18:28:30
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."
(emphasis supplied)
6] Thus, testing the facts of the case on hand, on the aforesaid
dictum of the Supreme Court, the impugned order dated
29.01.2021 cannot be countenanced in the eyes of law and is
hereby set aside and the matter is remanded back to the learned
Judge of the trial Court to proceed further in accordance with law.
7] With the aforesaid directions, the petition stands allowed and
disposed of.
(Subodh Abhyankar)
Judge
Pankaj
Signature Not Verified
Signed by: PANKAJ
PANDEY
Signing time: 19-06-2023
18:28:30
