Bombay High Court
Smt. Veena Wd/O Dilip Gorey vs Ashok S/O Daulatrao Goray And Another on 1 July, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 WP6329.18(j)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6329/2018
Smt Veena wd/o Dilip Gorey,
Aged 62 years,
r/o c/o Dr. Prafulla Waghmare,
26 Rajendra Colony, Amravati 444 606.
.... PETITIONER
...V E R S U S...
1] Ashok s/o Daulatrao Goray,
Age 72 years, Occu: Retired,
Assistant Commissioner of Police,
R/o Char Bungalow, Andheri West,
Mumbai.
2] Dr. Prafulla Gopalrao Waghmare,
Age 75 years, Occu: Medical Practitioner,
R/o Plot No. 26, Rajendra Colony,
Prashant Nagar Road, Amravati.
....... RESPONDENTS
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Shri R.R.Srivastava, Advocate for petitioner.
Shri R.N.Ghuge, Advocate for respondent no. 1.
Shri V.V.Tiwari, Advocate with Advocate S.Chinchbhankar, for respondent
no.2.
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CORAM : A.S.CHANDURKAR, J.
DATED : 01.07.2019
JUDGMENT
Rule. Heard finally with the consent of learned counsel for the parties.
2. The petitioner is aggrieved by the order dated 01.09.2018 passed by the learned 3rd Joint Civil Judge, Junior Division, Washim thereby directing addition of the respondent no.1 as plaintiff no.2 in the place of deceased ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 2 WP6329.18(j) plaintiff no.2 as "a person willing to be the next friend" of the petitioner.
3. The facts giving rise to the present writ petition are that the petitioner was married to one Dilip Gorey. In an accident that occurred on 02.06.2002 said Dilip succumbed to the injuries and the petitioner suffered head injuries. As a result, the petitioner is suffering from 'Aphasia' wherein the affected person has communication problems. The petitioner's husband was owning an agricultural field which was inherited to the petitioner after his death. The respondent no.1 is the brother of said Dilip, while the respondent no.2 is the husband of the petitioner's sister. R.C.S.No.263/2010 came to be filed for a declaration that on account of her ill-health, the petitioner was unable to take care of herself as well as her property and hence her mother-in-law be appointed as guardian of the petitioner. In the said suit, the petitioner was arrayed as plaintiff no.1 while the petitioner's mother-in- law was arrayed as plaintiff no.2. The said suit was filed against the respondent no.2 who as stated was the husband of the petitioner's sister. According to the petitioner, she was physically and mentally fit and hence on 24.08.2012 she filed an application seeking permission to withdraw the aforesaid suit. The trial Court disposed of the suit as withdrawn on 24.08.2012. This order was challenged by the respondent no.1 herein by filing Writ Petition No. 4202/2012 (Veena wd/o Dilip Gorey & another Vs. Dr.Prafulla G.Waghmare) claiming that he was the next friend of the petitioner. By the order dated 18.10.2012 this Court observed that it was ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 3 WP6329.18(j) open for the petitioners to file an appropriate application before the trial Court if they were aggrieved by the order permitting withdrawal of the suit. The said order was maintained in L.P.A.No.444/2012.
4. The respondent no.1 thereafter filed M.J.C.No.15/2013 for recalling the order dated 24.08.2012 passed by the trial Court permitting withdrawal of the suit. The respondent no.2 raised an objection that the Civil Court had no jurisdiction to entertain the suit in view of the provisions of the Mental Health Act, 1987 (for short, 'the Act of 1987'). The trial Court by its order dated 28.01.2015 decided the preliminary issue of jurisdiction and held that it had no jurisdiction either to entertain the suit or the application filed by the respondent no.1 herein. This order came to be challenged by the petitioner and respondent no.1 by filing Writ Petition No.988/2015 (Veena Wd/o Dilip Gorey and anr. Vs. Dr.Prafulla G.Waghmare). This Court by the order dated 06.04.2015 set aside the order passed by the trial Court on 28.01.2015 and restored the said proceedings. Similarly proceedings in R.C.S.No.263/2010 were also restored. Directions were issued to the trial Court to decide the application below Exhibit 11 that was filed by the respondent no.1 herein under the provisions of order XXXII Rules 1 and 2 of the Code of Civil Procedure, 1908 ( for short, 'the Code') This Court kept all questions including the question of the maintainability of the application Exhibit 11 open.
As per application at Exhibit 11, the respondent no.1 sought ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 4 WP6329.18(j) permission to contest the restoration proceedings as a next friend of the petitioner. The trial Court on 3.11.2015 noted that the petitioner had appeared before the Court and had filed an affidavit at Exhibit 14 as well as an application for referring her for medical examination before the Medical Board. The trial Court was of the view that it would be appropriate to call for an expert opinion by referring the petitioner to undergo medical examination. Hence at that stage the trial Court found that the respondent no.1 could not be appointed as a next friend of the petitioner. Hence the application below Exhibit 11 came to be rejected.
5. In the light of the application at Exhibit 11 by which the petitioner sought permission to have herself examined by the Medical Board, an order came to be passed on 03.11.2015 by which that application was allowed and the petitioner was permitted to undergo tests as per as per Act of 1987. The Medical Board was directed to file its report. Pursuant thereto the petitioner was examined by the Medical Board at Yavatmal. The Medical Board referred to the certificate of the Civil Surgeon, Washim that the petitioner was not having any mental illness and she was mentally sound. Accordingly the Medical Board opined that the petitioner was not having any major psychiatric illness when examined and there was mild cognitive impairment. An opinion was sought for the head injury-Aphasia. The petitioner was also examined by the Department of Psychiatry, Grant Medical College, Mumbai. In its report dated 26.12.2016, it was observed that the petitioner was not mentally ill but ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 5 WP6329.18(j) she had got neurological deficit due to previous head injury. It further observed that the petitioner could take simple decisions for her daily activities and also could take care of herself. She had ability to decide who should look after her.
6. The respondent no.1 thereafter filed an application at Exhibit 53 in which it was prayed that in view of the death of earlier next friend-plaintiff no.2 Shakuntalabai, he be appointed as the next friend of the petitioner. This application was filed under the provisions of Order XXXII Rules 10 (2) of the Code. The petitioner filed reply to the aforesaid application and opposed the prayer made therein by stating that she was capable of taking her own decisions and was not in need of any next friend. The trial Court by the impugned order dated 01.09.2018 was pleased to observe that it was necessary to direct addition of the respondent no.1 as a person willing to act as next friend and not next friend of the original plaintiff no.1. According to the trial Court, the reports on record were not sufficient to prove that the petitioner was of unsound mind and hence it was necessary to examine the doctors of the Medical Board. Thus, the respondent no.1 was appointed as a person willing to be the next friend of the petitioner and the respondent no.1 was further directed to submit the names of the doctors who he intended to examine. Being aggrieved the petitioner has challenged the said order.
7. Shri R.R.Srivastava, learned counsel for the petitioner submitted that the trial Court was not justified in passing the impugned order especially ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 6 WP6329.18(j) when the respondent no.1 had an interest adverse to that of the petitioner. Referring to various medical reports on record which indicated that the petitioner was not mentally ill, he submitted that the trial Court was not justified in ignoring those reports and directing addition of the respondent no. 1 as a person willing to be the next friend of the petitioner-plaintiff no.1. Referring to the provisions of the order I Rule 10(2) of the Code, it was submitted that the said provisions did not contemplate addition of any party as "the person willing to be the next friend" of a party. In the light of the fact that the application below Exhibit 11 that was filed by the respondent no.1 seeking his appointment as the next friend had been rejected which order had attained finality, it was not permissible for the respondent no.1 to have again moved an application making similar prayers. After the order was passed below Exhibit 11 the petitioner was duly examined by various experts who had opined that the petitioner was in a position to take her own decisions and was mentally fit. He also submitted that the present writ petition had been filed by the petitioner herself without assistance of any other person which substantiates the medical reports. In the light of the fact that the respondent no.1 had an interest adverse to that of the petitioner and that he was the brother of deceased Dilip who could also claim interest in the properties left by Dilip, the respondent no.1 could not have appointed as a person willing to be the next friend of the petitioner. It was thus submitted that the impugned order was liable to be set aside.
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7 WP6329.18(j)
8. Shri R.N.Ghuge, learned counsel for the respondent no.1 supported the impugned order. He submitted that no prejudice was caused to the petitioner considering the nature of order passed by the trial Court. The respondent no.1 had not been appointed as the next friend of the petitioner but had been directed to act as the person willing to be the next friend of the petitioner. Moreover such appointment was only till completion of the enquiry as to the unsoundness of the plaintiff no.1/petitioner herein. He referred to the provisions of Order XXXII Rule 15 of the Code and submitted that since the suit was filed with the aid of the next friend and said next friend had expired, it was all the more necessary to permit the respondent no.1 to represent the interest of the petitioner. According to him, enquiry directed to be held by the trial Court could be done expeditiously by continuing the appointment of the respondent no.1 as the person willing to be the next friend. He placed reliance on the decisions in Raj Kumar Vs. Rameshchand and others, (1999) 8 SCC 29, Somnath Vs. Tipanna Ramchandra Jannu AIR 1973 Bombay 276 and Gulshan Rohington Irani Vs. Rayomand Rohinton Irani and others, 2018(4) BCR 69 in support of his submissions.
Shri V.V.Tiwari, learned counsel for the respondent no.2 supported the submissions as made on behalf of the petitioner. It was submitted that the writ petition was liable to be allowed on the ground that the respondent no.1 was unnecessarily harassing the petitioner.
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8 WP6329.18(j)
9. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. The manner in which the proceedings in R.C.S.No.263/2010 have progressed indicate that after the death of plaintiff no.2-Shakuntalabai, the respondent no.1 has sought to urge that as the petitioner was unable to take decisions for herself and was not mentally fit, he should be permitted to represent her interest. The suit that was withdrawn by the petitioner was sought to be restored on that count. It can be seen that in M.J.C.No.15/2013 that was arising out of the R.C.S.No.263/2010, the trial Court on 03.11.2015 had rejected the application that was moved by the respondent no.1 for being appointed as the next friend of the petitioner. While passing that order, the trial Court observed that the petitioner herself had appeared in the Court and had filed an affidavit at Exhibit 14. On 16.10.2015 she had filed application for being medically examined by the Medical Board. Another application to examine the doctors was also moved by the petitioner. In the light of aforesaid, the trial Court was of the view that it would be necessary to call for expert opinion by referring the petitioner to undergo medical test. At the same time, it was observed that there was nothing before the trial Court at that stage to conclude that the petitioner was of unsound mind or otherwise. It further observed that if a person was of sound mind and was a major, then the next friend could not be appointed. The application moved by the respondent no.1 thus came to be rejected, while the application moved by the petitioner also ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 9 WP6329.18(j) below Exhibit 11 for being referred to the Medical Board came to be allowed. After this order was passed on 03.11.2015 the petitioner was examined by the Medical Board and its report dated 12.12.2015 at Exhibit 30 does not indicate unsoundness of mind of such nature warranting requirement of assistance of the next friend. There is also a report of the Department of Psychiatry, Grant Medical College, Mumbai which has opined that the petitioner could take simple decisions, she was not mentally ill and that she also had ability to decide who should look after her. In the light of these opinions by the experts, it becomes clear that there was no reason whatsoever for the trial Court to have appointed the respondent no.1 as "the person willing to be the next friend" of the petitioner. The medical reports prima facie were sufficient to proceed with the proceedings in the suit especially when the report dated 26.12.2016 states that the petitioner was not mentally ill.
Thus, in the light of rejection of the earlier application that was moved by the respondent no.1 by order dated 03.11.2015 coupled with the reports of the Medical Board at Yavatmal as well as of the Department of Psychiatry, Grant Medical College, Mumbai, directions issued by the trial Court to appoint the respondent no.1 as the person willing to be the next friend of the petitioner were uncalled for. Moreover, the provisions of Order I Rule 10(2) of the Code did not contemplate appointment of "a person willing to be the next friend". In any event, when it was the grievance of the petitioner that the respondent no.1 had an interest adverse to that of the ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 10 WP6329.18(j) petitioner in the light of the fact that the respondent no.1 was the brother of deceased Dilip who could also claim right in the properties owned by said Dilip, the trial Court ought to have taken into consideration that aspect of the matter also. If the Medical Board had opined that the petitioner was not mentally ill, there was no reason for the respondent no.1 to have raised an objection by filing another application at Exhibit 55. Ignoring all these aspects, the trial Court proceeded to direct appointment of the respondent no.1 as a person willing to be the next friend of the petitioner. The said direction is therefore found to be unsustainable and is liable to be set aside. The ratio of the decisions relied upon by the learned counsel for the respondent no.1 cannot apply to the case in hand in the light of the aforesaid facts.
10. Insofar as the second direction issued by the trial Court of submitting the names of the doctors who are intended to be examined is concerned, the parties are free to bring on record such evidence as is found desirable by them to substantiate their contentions.
11. In that view of the matter, the following order is passed :
(i) Direction no.1 issued by the trial Court in the order below Exhibit-
55(Exhibit-1) on 01.09.2018 is set aside.
(ii) The parties are free to bring on record such evidence as is found necessary to substantiate their respective contentions.
(iii) The proceedings in R.C.S.No.263/2010 are expedited and the trial ::: Uploaded on - 01/08/2019 ::: Downloaded on - 13/04/2020 15:32:48 ::: 11 WP6329.18(j) Court shall proceed to decide the same in accordance with law and preferably by the end of December, 2019.
(iv) It is clarified that the observations made in this order/judgment are only for deciding the challenge to the impugned order and the trial Court shall decide the proceedings on its own merits and in accordance with law.
(v) The writ petition is allowed in aforesaid terms with no orders as to costs.
JUDGE Andurkar...
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