Karuna Pande vs Nand Kishori Tiwari
2023 Latest Caselaw 7228 MP

                                                      1
                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                               HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                             ON THE 3 rd OF MAY, 2023
                                          MISC. PETITION No. 2343 of 2022

                         BETWEEN:-
                         1.    KARUNA PANDE W/O LATE SHIVKUMAR PANDE,
                               AGED ABOUT 65 YEARS, OCCUPATION: GOVT.
                               SERVICE R/O AZAD WARD MANDLA DIST.
                               MALDLA (MADHYA PRADESH)

                         2.    GANGESH PANDE S/O LATE SHIVKUMAR PANDE
                               OCCUPATION: GOVT. SERVICE R/O AZAD WARD
                               DISTRICT MANDLA (MADHYA PRADESH)

                                                                             .....PETITIONERS
                         (BY SHRI PARITOSH TRIVEDI - ADVOCATE)

                         AND
                         1.    NAND KISHORI TIWARI W/O LATE MAHESH
                               TIWARI R/O AZAD WARD MANDLA DISTRIC
                               MANDLA (MADHYA PRADESH)

                         2.    SMT. MEENA TIWARI W/O SANAD TIWARI, AGED
                               ABOUT 48 YEARS, R/O VILLAGE LAFARA, TAHSIL
                               AND DISTRICT MANDLA (MADHYA PRADESH)

                         3.    ANAND PANDE S/O LATE SHIVKUMAR PANDE R/O
                               AZAD     WARD       MANDLA      DISTRICT
                               MANDLA(MADHYA PRADESH)

                         4.    SMT. MADHURI CHOUBE W/O NEELESH CHOUBE,
                               AGED ABOUT 38 YEARS, R/O MISHRA COLONY,
                               BARAIPURA CHHINDWARA (MADHYA PRADESH)

                         5.    SMT. MAMTA SJUKLA W/O PRAMOD SHUKLA,
                               AGED ABOUT 36 YEARS, R/O AZAD WARD
                               MANDLA (MADHYA PRADESH)

                                                                            .....RESPONDENTS


Signature Not Verified
Signed by: VARSHA
CHOURASIYA
Signing time: 5/5/2023
11:34:11 AM
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                               Th is petition coming on for hearing this day, th e court passed the
                         following:
                                                             ORDER

As per the office note, respondent No.1 has refused to take the notice. Accordingly, he is held to be served. The respondents Nos.2 to 5 are served but none appears for them.

2. This petition under Article 227 of the Constitution of India has been filed against the order dated 29.11.2021 passed by Second Civil Judge Class-2, Mandla, District Mandla in RCSA No.32A/2015 by which the application filed by petitioner No.1 seeking appointment of next friend on the ground that

petitioner No.1 is mentally retarded has been rejected.

3. It is submitted by the counsel for the petitioners that whenever an application is filed for appointment of next friend on the ground of mental retardness of the party, then the Court must conduct an inquiry to record his satisfaction and finding about the extent of disablement before proceeding with the case. To buttress his contention, the counsel for the petitioners has relied upon the judgment passed by the Division Bench of this Court in the case of Alka v. Akash reported in (2010) 2 MPLJ 72.

4. None appears for the respondents though served.

5. The contention of the petitioners is that before deciding the application for grant of permission to defend the suit through next friend on the ground of mental retardness, the Court below should have conducted an inquiry. If the order passed by the trial Court is considered in the light of the judgment passed by the Division Bench of this Court in the case of Alka (supra), then it is clear that the Court below has held that 40% of mental retardness of petitioner No.1 is a mild mental disability. The trial Court has not recorded any reason for Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 5/5/2023 11:34:11 AM

holding that 40% of mental retardness is a mild mental disability. The Court below should have conducted an inquiry by directing the parties to examine the medical expert to find out as to whether petitioner no.1 is competent to defend herself or not?

6. Under these circumstances, this Court is of the considered opinion that the order dated 29.11.2021 passed by the trial Court cannot be given the stamp of approval. Accordingly, the same is hereby set aside.

7. The trial Court is directed to decide the application afresh in the light of the judgment passed by the Division Bench of this Court in the case of Alka (supra).

8. The parties are directed to keep all their witnesses present before the trial Court for adjudication on the application for grant of permission to defend the suit through next friend. If necessary the trial Court may direct the appearance of petitioner No.1 for self assessment.

9. Let the application be decided within a period of three months from the resumption of Court working after ensuing summer vacation.

10. With aforesaid observations, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE vc

Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 5/5/2023 11:34:11 AM