Punjab-Haryana High Court

M/S Parkash Jewellers vs Paramjit Kaur on 29 April, 2024

Author: Alka Sarin

Bench: Alka Sarin

                        CR No.2104 of 2024                      -1-                 2024:PHHC:057518

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        123                                           CR No.2104 of 2024 (O&M)
                                                                      Reserved on : 24.04.2024
                                                                      Date of Decision : 29.04.2024


                        M/s Parkash Jewellers through its Proprietor Anil Parkash        ....Petitioner

                                                          VERSUS

                        Paramjit Kaur                                                 ....Respondent

                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                        Present :   Mr. K.S. Dadwal, Advocate and
                                    Ms. Neha Jain, Advocate for the petitioner.

                                    Mr. Harsh Kinra, Advocate for the respondent.

                        ALKA SARIN, J.

1. The present revision petition has been filed by judgment-debtor

(tenant-petitioner herein) challenging the order dated 27.03.2024 whereby

three applications filed by it herein have been dismissed. The first

application was for appointment of legal guardian/next friend of the decree-

holder, Paramjit Kaur (landlord-respondent herein). The second application

was for adjourning the matter sine die till such appointment. The third

application was for permitting the tenant-petitioner to deposit the arrears of

rent. Vide the impugned order dated 27.03.2024 all the applications filed by

the tenant-petitioner were dismissed.

2. Before adverting to the present case, a few facts may be

noticed. On 23.05.2014 Paramjit Kaur, landlord-respondent herein, filed an

ejectment petition on the ground of arrears of rent and bonafide personal

necessity. It is apt to note that the property stands in the name of Paramjit

integrity of this order/judgment

CR No.2104 of 2024 -2- 2024:PHHC:057518

Kaur. Vide order dated 19.01.2018 the Rent Controller assessed the

provisional rent and fixed 19.03.2018 for payment of rent. The said order

was challenged by the tenant-petitioner before the Appellate Authority,

which dismissed the appeal vide order dated 01.09.2018. The said order was

challenged in CR-7444-2018 before this Court. Meanwhile, an application

was filed by the landlord-respondent for eviction of the tenant-petitioner on

account of non-deposit of provisional rent. The same was dismissed by the

Rent Controller vide order dated 19.04.2022. The said order dated

19.04.2022 was challenged before this Court by filing CR-2420-2022, which

was allowed vide order dated 27.09.2023 and the tenant-petitioner herein

was directed to hand over the vacant possession of the property within a

period of three months along with arrears of rent and ancillary charges. SLP

No.26947 of 2023 challenging the said order dated 27.09.2023 was filed by

the tenant-petitioner which was dismissed vide order dated 14.12.2023. It is

apt to note that all these proceedings were pursued by the landlord-

respondent herself. On 15.01.2024 an execution petition was filed on behalf

of Paramjit Kaur by her son, namely, Kulwinder Singh as next friend. On

26.02.2024 an application was filed by the tenant-petitioner for appointment

of a legal guardian/next friend of the decree-holder Paramjit Kaur (landlord-

respondent). Another application was filed for adjourning the execution sine

die till appointment of a legal guardian and the third application was filed for

giving permission to deposit the arrears of rent. All three applications were

dismissed vide the impugned order dated 27.03.2024. Hence, the present

petition.

3. Learned counsel for the tenant-petitioner would contend that as

per provisions of Order XXXII Rule 15 of the Code of Civil Procedure,

integrity of this order/judgment

CR No.2104 of 2024 -3- 2024:PHHC:057518

1908, it is incumbent on the Court to hold an enquiry as the landlord-

respondent was not adjudged as a person of unsound mind. In support of his

arguments he has relied upon judgment of the Hon'ble Supreme Court in the

case of Kasturi Bai & Ors. vs. Anguri Chaudhary [2003(1) RCR (Civil)

765] and that of this Court in the cases of Dilbagh Singh vs. Sawinder

Kaur [2011(13) RCR (Civil) 379], Pirthi Pal Singh vs. Jagtar Singh &

Ors. [2019(3) PLR 144] and Harjinder Singh vs. Nachhattar Kaur

[1991(2) RRR 499]. Learned counsel for the tenant-petitioner would further

contend that the application for adjourning the matter sine die and for

depositing of rent have also been dismissed arbitrarily by the Executing

Court.

4. Per contra learned counsel for the landlord-respondent would

contend that the landlord-respondent is in a state of comatose and a

certificate by the doctor has also been appended. Learned counsel for the

landlord-respondent would further contend that the petition could have been

filed through her next friend and that only in case of unsoundness of mind of

the landlord-respondent would the requirement of appointing a legal

guardian after enquiry by the Court be necessary. In support of his

arguments he has relied upon judgment of the Hon'ble Supreme Court in the

case of Nagaiah & Anr. vs. Smt. Chowdamma (dead) by LRs & Anr.

[2018(2) RCR (Civil) 617] and that of this Court in the cases of Jarnail

Singh & Ors. vs. Smt. Naranjan Kaur & Ors. [2011(2) RCR (Civil) 215],

Lilu Ram vs. Kapur Singh & Ors. [2018(3) Law Herald 1982], Rajvir

Kaur vs. Sehajpreet Singh (minor) through next friend & uncle Malkit

Singh & Anr. [2017(5) RCR (Civil) 314].

5. I have heard learned counsel for the parties.

integrity of this order/judgment

CR No.2104 of 2024 -4- 2024:PHHC:057518

6. In the present case the tenant-petitioner has lost upto the

Hon'ble Supreme Court and now in the execution proceedings it is filing

applications apparently to delay the proceedings. The applications for

adjourning the matter sine die and for deposit of arrears of rent have rightly

been dismissed by the Executing Court. Once the eviction of the tenant-

petitioner was ordered on the ground of non-payment of rent assessed as

provisional rent, the said application was rightly not entertained and the

tenant-petitioner was also directed to pay the arrears of rent and ancillary

charges. It has rightly been held by the Executing Court that the decree-

holder was entitled to the entire payment of Rs.13,60,033/- as arrears w.e.f.

07.03.2010 @ Rs.4,500/- per month alongwith interest and costs as

adjudicated by the Rent Controller, Jalandhar. Since the said order has

already been upheld by the Hon'ble Supreme Court vide order dated

14.12.2023 hence no fault can be found with the order passed by the

Executing Court dismissing the said applications.

7. The judgment of the Hon'ble Supreme Court in the case of

Nagaiah (supra) relied upon by learned counsel for the landlord-respondent

is a case under the Hindu Minority and Guardianship Act, 1956 and hence

would not have the applicability to the present case. The judgment relied

upon by learned counsel for the landlord-respondent in the case of Jarnail

Singh (supra) is also a case where the suit was filed through next friend of

the plaintiff who was stated to be of unsound mind. Similar is the case in the

judgments of Lilu Ram (supra) and Rajvir Kaur (supra).

8. Hon'ble Supreme Court in the case of Kasturi Bai (supra) has

held that under Order XXXII Rule 15 CPC the Court would not appoint a

guardian without holding an enquiry. Similar is the law laid down in the

integrity of this order/judgment

CR No.2104 of 2024 -5- 2024:PHHC:057518

cases of Dilbagh Singh (supra), Pirthi Pal Singh (supra) and Harjinder

Singh (supra).

9. In the present case a medical certificate has been appended

certifying that the landlord-respondent was admitted in Medanta Hospital,

Gurugram with Post Epileptic Coma on 03.09.2022 and was discharged on

30.11.2022 and presently she is admitted in Doaba Hospital, Jalandhar since

01.12.2022. It has further been stated that tracheostomy has been done for

her respiratory care and she has been put on a feeding tube. The Executing

Court keeping in view the provisions of Order XXXII Rule 15 CPC as well

as the judgment of the Hon'ble Supreme Court in the case of Kasturi Bai

(supra) ought to have conducted an enquiry in accordance with law. Though

it is apparent that the tenant-petitioner is taking the benefit of technicalities

and trying to delay the proceedings, however, the procedures cannot be

given a go-by and hence an enquiry ought to have been held by the

Executing Court.

10. The scope of an inquiry under Order XXXII Rule 15 CPC was

discussed by a Division Bench of the Bombay High Court in Somnath

Dnyanoba Mahapure vs. Tipanna Ramchandra Jannu [AIR 1973 Bom

276] where it was held that :

"18. 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 cl. (d) of r. 1 of O. VII 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

integrity of this order/judgment

CR No.2104 of 2024 -6- 2024:PHHC:057518

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 r. 15 of O. XXXII. 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 incapable of

protecting his own interests. The provisions of r. 15 of

O. XXXII make it possible for a next friend to sue on

integrity of this order/judgment

CR No.2104 of 2024 -7- 2024:PHHC:057518

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."