Jharkhand High Court
Geeta Devi vs Geeta Devi on 15 July, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5722 of 2013
1. Geeta Devi, wife of Chhotelal Tiwari
2. Chhotelal Tiwari, son of Late Ram Charitar Tiwari
Both residents of Village Bauliya, P.O. Ranka Bauliya, P.S. Garhwa,
District Garhwa, Jharkhand ... ... Defendants/Petitioners
Versus
1. Geeta Devi, wife of Parasnath Tiwari
2. Kaushal Kumar Tiwari
3. Manish Kumar Tiwari
Sl Nos. 2 and 3 are minor sons of Parasnath Tiwari, represented through
their mother and guardian respondent no. 1.
... ... Plaintiffs/respondents
4. Parasnath Tiwari, son of Jagatpal Tiwari
All residents of Village Bauliya, P.O. Ranka Bauliya, P.S. Garhwa, District
Garhwa, Jharkhand ... ... Defendant no. 3/Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Sanjay Kumar Tiwari, Advocate
For the Resp. Nos. 1 to 4 : None
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th
17/15 July 2024
1. Learned counsel for the petitioners is present.
2. Nobody appears on behalf of the respondent Nos. 1, 2 and 3.
3. This writ petition has been filed for the following reliefs: -
"(a) For quashing/setting aside the order dated 26.07.2013 (Annexure-6) and order dated 06.08.2013 (Annexure-7) passed by the Learned Civil Judge, Jr. Division No. -II, Garhwa, in T.S. No. 51 of 2009, whereby and whereunder the application filed by the plaintiffs dated 16.11.2011 (Annexure-2) for appointment of guardian ad-litem for defendant no. 3 has been allowed holding the plaintiff's petition to be well maintainable, in spite of the objection raised by the defendants/petitioners to the effect that the defendant no. 3 is a mentally fit, hale and hearty person, without deciding the material issue in proper prospective after taking the precaution of judicial enquiry as contemplated under Order 32 Rule 15 of the C.P.C.
(b) For direction be issued to the Learned Trial Court to hold judicial enquiry by examining the defendant no. 3 himself as well as with the aid of expert of mental hospital and giving an opportunity to the 1 petitioners (defendants) to adduce evidence for the purpose of decision relating to the allegation by the plaintiffs of mental weakness of defendant no. 3 and denial of the same by defendants-present petitioners.
(c) Pending final decision of the present writ application, the further proceeding of T.S. No. 51 of 2009 pending in the Court of the Learned Civil Judge (J.D.-II), Garhwa, may kindly be stayed.
And For further writ/order/direction as Your Lordships may deem fit and proper for doing conscionable justice to the petitioners."
4. The learned counsel for the petitioners has referred to the suit which was filed by the respondent Nos. 1, 2 and 3 who were plaintiffs before the Court and the defendant No. 3 in the suit is the husband of the plaintiff No. 1 and is respondent no.4 in the present case. The defendant Nos. 1 and 2 are the purchasers of the property involved in this case in connection with which the sale-deed was executed by the defendant No. 3. The suit was filed seeking a declaration as follows: -
Reliefs "A- That it be declared that the defendant no. 3 is a psychiatric ailing and wine edict man and he is not a competent man to enter in any contract with any one. And the sale deed nos. 3466 dated 11.6.06, 4017 dated 26.6.09 and 3753 dated 18.6.09 have been brought in existence by defendant no. 1 and her husband defendant no. 2 without consideration and are imperative and void having no competence to convey anything like right, title, interest or possession to the defendant no. 1.
B- That the defendant no. 3 by issuance of permanent injunction be restrained to make sale, gift, exchange, lease, mortgage, will to any one of the suit land or any part of it.
C- The costs of the suit be awarded to the plaintiffs. D- That any other relief or reliefs which the Court deems proper be awarded to the plaintiffs."
5. The learned counsel submits that the entire design was to get the sale- deed declared null and void on the premise that the defendant No. 3 was of unsound mind.
6. The learned counsel has further submitted that the defendant No. 3 was sent for examination by a team of doctors and upon receipt of the report, the petitioners had filed an objection as contained in Annexure-5 and the said 2 objection was initially rejected vide order dated 26.07.2013 and thereafter another order was passed on 06.08.2013, wherein it was recorded that vide order dated 14.09.2011, the plaintiff was directed to disclose the correct address of the defendant No. 3 and against the same, the plaintiff came with a petition dated 16.11.2011 alleging that the defendant No. 3 was mentally weak person and was under treatment. It was reported that the defendant No. 3 was initially traceless but at later stage, he appeared and ultimately by virtue of order dated 06.08.2013, it was observed by the Court that the defendant No. 3 does not appear to be of quite sound mind and fit to contest the suit and therefore the guardian ad-litem should be appointed at the cost of the plaintiff and an advocate was appointed as guardian ad-litem for the defendant No. 3.
7. The learned counsel submits that from perusal of the order dated 06.08.2013, it appears that the Court has come to a conclusion that the defendant No. 3 was of unsound mind which may affect the suit of the petitioners. He submits that the same court on earlier occasion was of the view that the defendant Nos. 1 and 2 will have full opportunity to prove their case and rebut the medical report in course of trial and therefore the objection of the petitioners in connection with medial report was rejected.
8. The learned counsel submits that the impugned orders may prejudice the suit which will have a direct bearing on the sale-deeds which have been executed by the defendant No. 3 and the defendant Nos. 1 and 2 are in possession of the suit properties by virtue of the registered sale deeds.
9. After hearing the learned counsel for the petitioners, this Court finds that in the suit it was alleged that the defendant No. 3 is of unsound mind and consequently a prayer was made to declare the sale-deed executed by him in favour of defendant Nos. 1 and 2 as null and void. The plaintiffs had filed a petition for appointment of guardian ad-litem for the defendant No. 3 but the court found it fit to send the defendant No. 3 for his examination by constituting a Medical Board and the medical report was submitted vide letter dated 10.06.2013.
10. Vide order dated 09.12.2020 passed by this Court, a report was called for from the concerned court regarding the qualification of the doctors of the 3 Medical Board. The name of the doctors and their qualification has been given in a tabular form hereinbelow: -
क्र०स० मेडिकल बोि के सदस्ोों का शैक्षडिक अभ्युक्ति नाम एव पदनाम योग्यता 1 िॉ० आनन्द कुमार MBBS, DTCD At present (डिडिसीयन) taken voluntary retirement 2 िॉ० आर० के० रों िन MBBS, Assistant (डिडिसीयन) MD(Medicine) Professor Medicine (MMCH Palamu) 3 िॉ० आशीष कुमार MBBS, DPM Specialized (Psychiatry) MO (National Mental Health Programme Jharkhand)
11. This Court finds from the impugned orders that the Court had sent defendant No. 3 for examination by medical board and the objection of the petitioners to the medical report was rejected by impugned order dated 26.07.2016 holding as follows: -
"Heard, perused, considered.
First of all, this report is not an evidence in the suit rather it has been called for adjudication of said petition dated 16.11.11 of plaintiff; secondly, the defendant 1+2 did not raise any objection earlier. Though, he duly got such opportunity. This objection, thus, seems to be an afterthough story.
Further these defendant no. 1+2 have got full opportunity to prove their case and rebut above medical report in course of trial. This objection petition does not seems to be maintainable and hence stands rejected. Put up on 1.8.13 for afresh hearing over petition dated 16.11.11 of plaintiffs. Parties to come ready. No necessary adjournment will be allowed."
12. Subsequently, the guardian was appointed vide the other impugned order dated 06.08.2013.
13. This Court finds that the learned court has already observed that the defendant Nos. 1 and 2 have got full opportunity to prove their case and rebut the medical report in course of trial. It has also observed that the report is not an evidence in the suit rather it was called for adjudication of the petition dated 4 16.11.2011. This Court finds that the constitution of the medical board reveals that one of the doctors was psychiatric and therefore the apprehension in the mind of the petitioners that the impugned orders would prejudice their suit on merits is misplaced. There is no grievance/allegation with respect to the advocate who has been appointed as guardian ad-litem.
14. In view of the aforesaid findings, this Court finds no reason to interfere with the impugned orders under Article 227 of the Constitution of India.
15. Accordingly, this writ petition is dismissed.
16. Pending I.A., if any, is closed.
17. Let a copy of this order be communicated to the court concerned through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.) Mukul 5