Patna High Court
Smt. Godawari Devi vs Smt. Radha Pyari Devi And Ors. on 23 April, 1985
Equivalent citations: AIR1985PAT366, 1986(34)BLJR451, AIR 1985 PATNA 366, (1985) PAT LJR 614
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether a party to the suit has the right to put the soundness of mind of the opposite party (not already adjudged to be of unsound mind) in issue and claim an enquiry therefor under Order 32 Rule 15 of the Civil P.C. is the somewhat ticklish question arising in this civil revision, which has necessitated this reference to the Division Bench.
2. The facts are not in serious dispute. The plaintiff opposite party had instituted the title suit for partition of her one-fourth share in the suit properties, wherein she later brought an application for an injunction. It would appear that a detailed show cause was filed on behalf of the defendant petitioner against the said application and in paras 33,34 and 35 thereof a stand was sought to be taken that the plaintiff had lost her mental powers and was unable of protecting her legal interests and, therefore, the suit should have been brought by her next friend. Later a cryptic application purporting to be under Order 32 Rule 15 of the Civil P.C. was brought on behalf of the defendant petitioner claiming that unless an enquiry is made with regard to the mental capacity of the plaintiff the suit could not proceed any further.
3. The matter came up before the learned Subordinate Judge below on the 16th April, 1982 when the sole plaintiff Shrimati Radha Pyari Devi was present. The court apparently questioned her to test her mental capacity and found her to be of wholly sound mind and in no way incapable, by reason of any mental infirmity, of protecting her legal interest. Consequently he rejected the application and proceeded to try the injunction matter. Aggrieved by the said order, the present civil revision petition has been preferred, which originally came up before my learned Brother B.P. Jha sitting singly. Noticing the significance of the issue involved, the matter was referred to the Division Bench.
4. Mr. Ghose appearing for the petitioner first claimed that there was an inherent right in a party to the suit to question the soundness of mind of the other party. It was the stance that unless it is so done, the party will be at the risk of losing the fruits of litigation if later on it was discovered that one of the parties was of unsound mind. Consequently the stand was that the issue of the soundness of a party's mind, if raised, must be tried as a preliminary issue before proceeding further. In any case the contention was that there must be a regular enquiry under Order 32 Rule 15 which would envisage the right of the parties to the suit to lead evidence and the examination of expert witnesses etc. According to the learned counsel, the application preferred by the petitioner could not be summarily disposed of by the trial court on the question of the mental capacity of the plaintiff opposite party. Reliance was placed on Rami Reddi v. Papi Reddi AIR 1963 Andh Pra 160, Ramgobind Singh v. Sital Singh AIR 1926 Pat 489, and Papi Reddi v. Rami Reddi AIR 1969 Andh Pra 362.
5. The true import of Rule 15 can be best arrived at after noticing the broad scheme of Order 32. This deals compositely with suits by or against minors and persons of unsound mind. The preceding Rules 1 to 14 are by and large couched in language pertaining primarily to the case of minors. However, Rule 15 makes the preceding Rules 1 to 14 barring Rule 2A apply to persons of unsound mind mutatis mutandis. It must be borne in mind that Rules 1 to 14 do not necessarily become applicable in their full strictitude to the cases of persons of unsound mind because of the express language employed In Rule 15 to the effect that they would apply in so far as may be. Since the Issue herein must primarily turn on the language of Rule 15, the same may be first read :
"15. Rules I to 14 (except Rule 2A) shall, so far as may be apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued," An analysis of the rule would plainly indicate that it deals with two distinct classes of persons. Firstly, it is applicable in its strictness to persons who have been adjudged to be of unsound mind. This, inter alia, has obvious reference to the provisions of the Indian Lunacy Act. Such ad judgment may be either before or during the pendency of the suit. Therefore, persons adjudged to be of unsound mind are a class by themselves.
The second category is that of persons who are not so adjudged but those whom the court may find as unable to protect their interest because of any mental infirmity. This plain classification is indeed patent from the provision and has been precedentially so held in A.S. Monammad Ibrahim Ummal v. Shaik Mohammad Marakayar AIR 1949 Mad 292 :
"That is to say, this rule (Order 16 Rule 17) also, as does Rule 15 of Order 32, draws a distinction between the two classes of persons, persons who were already adjudged of unsound mind and persons who were not so adjudged."
6. It is common ground that herein we are not dealing with the category of persons adjudged to be of unsound mind. That different considerations would be attracted in their case is patent and, therefore, this category may, for all purposes, be left altogether apart. Adverting now to the second category, it seems plain that the issue of unsoundness of mind of the parties in this class is primarily betwixt the Court and the party and is certainly not a lis betwixt the parties themselves. The legislature in its wisdom has conferred a larger and paternal power on the Court to see that each party has the capacity to safeguard its legal interest and is no way handicapped by reason of any mental infirmity. It is equally significant to notice that this broad-based power extends in cases of any mental infirmity and is not necessarily governed by the extreme situation of a person being of unsound mind altogether. To my mind, this beneficial and, indeed, paternal power is wholly vested in the Court and it is in its discretion alone, where it finds that any one of the parties is suffering from a weakness of mind, to proceed for taking steps to safeguard the interest of such a party. To use the language of another jurisdiction, namely, that of contempt, the lis herein is betwixt the Court and such a party and not betwixt the opposite parties as such. As has been said in that jurisdiction, the issue of contempt is primarily between the Court and the contemner, and even more so under. Order 32 Rule 15 in its second category, it is a matter entirely between the Court and the party alone and nobody else has any vested interest or right to agitate the unsoundness of mind of his opponent in this class. To put it tersely, it is not an issue betwixt the parties and neither the plaintiff nor the defendant has the locus standi to challenge or question the soundness of mind of the opposite side and claim an adjudication thereon at the very threshold. If this were to be so permitted in this field, there would, perhaps, be no end to allegations and counter allegations in this regard and its misuse would be capable of working grave public mischief.
7. The cases relied upon by Mr. Ghose are plainly distinguishable. In both AIR 1963 Andh Pra 160 and AIR 1969 Andh Pra 362 (supra) the suit had been brought on behalf of the plaintiff by his next friend on the obvious allegation that the plaintiff, because of reasons of mental infirmity, could not sue directly himself. Obviously in such a situation the issue of the mental infirmity of the party is thus brought into the field on behalf of the party himself and, if contested, must be gone into. Therefore, these cases by plaintiff through his next friend are on altogether different footing and have no relevance to the pointed second category of cases under Order 32 Rule 15 to which alone we are confined in the present case. AIR 1926 Pat 489 (supra) is a case not under Order 32 Rule 15 at all and pertains to the issue of minority under Rule 3 of Order 32. This indeed has little or no relevance to the point which calls for consideration.
8. In fairness to the learned counsel for the opposite party, it must be noticed that he sought to place reliance on Venkata Rangacharyulu v. Gopalakrishnamacharyulu AIR 1962 Andh Pra 110. This case, however, is not directly attracted because it arose under the Lunacy Act. Under Section 62 of the Lunacy Act with regard to the Court's power of directing inquisition, it was held that the District Judge would be justified in dismissing summarily an application for a claim of inquisition if he is otherwise satisfied that the allegations made therein are baseless. The observations tend to help the stand of the opposite party only by way of analogy.
9. To conclude, the answer to the question posed at the outset is rendered in the negative and it is held that in the second category of cases under Order 32 Rule 15 where there is no adjudgement of unsoundness of mind a party has no right or locus standi to challenge the soundness of mind or the mental capacity of the other party and claim an enquiry therefor.
10. Once it is held as above, it is obvious that the petitioner cannot claim any preliminary issue or an enquiry about the soundness of mind or otherwise of the plaintiff. Equally she has no vested right to have an enquiry made in this context and to lead evidence generally or of experts for the said purpose. As noticed earlier, in the second category it is a paternal jurisdiction vested in the Court and it may in its discretion choose to determine it in a manner it is best advised. The petitioner has no locus standi to make any grievance with regard thereto. Even otherwise the Court took the elementary precaution of examining the plaintiff and questioning her and thereafter has come to the conclusion that she suffers from no mental infirmity which may incapacitate her from safeguarding her legal interest. The revision petition is, therefore, without merit and is hereby dismissed with costs.
B.P. Jha, J.
11. I agree.