Karnataka High Court
T Sheshadri vs Srinivasa Prakash on 21 July, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.4815/2021 (MH)
BETWEEN:
T. SHESHADRI,
S/O THAMMAIAH,
AGED ABOUT 56 YEARS,
RESIDING AT NO.25,
OLD NO.17, 11TH CROSS,
PRASHANTH NAGAR,
BANGALORE-560040. ... APPELLANT
(BY SRI MAHESH R. UPPIN, ADVOCATE)
AND:
1. SRINIVASA PRAKASH,
S/O LATE SMT. JAYA KRISHNASWAMY
AND M.R. KRISHNASWAMY IYENGAR,
HAVING PERMANENT ADDRESS
AT NO.2358/18, 10TH MAIN E BLOCK,
2ND STAGE, RAJAJINAGAR,
BANGALORE-560010.
PRESENTLY C/O. ASHA JEEVAN,
NO.57, 7TH CROSS,
PAVAMANA RESIDENCY,
KEMBATHALLY ROAD,
BANNERGHATTA ROAD, GOTTIGERE,
BANGALORE-560083.
BY NEXT FRIEND VENUGOPAL V.K,
S/O V.S. KRISHNAMURTHY,
AGED ABOUT 41 YEARS,
2
RESIDING AT NO.60. 35TH MAIN,
2ND STAGE, BTM LAYOUT,
BANGALORE-560068.
2. M.R. PARTHASARATHY,
S/O M.S.RAMASWAMY IYENGAR,
AGED MAJOR,
R/O.125, 3RD MAIN ROAD,
3RD PHASE, J.P. NAGAR,
BANGALORE-560078.
3. SMT. SUJAYA PARTHASARTHY,
W/O M.R. PARTHASARTHY,
AGED MAJOR,
R/O.125, 3RD MAIN ROAD,
3RD PHASE, J.P. NAGAR,
BANGALORE-560078.
4. C.A. SRIDHAR,
S/O LATE ADINARAYANA REDDY,
AGED ABOUT 60 YEARS,
R/AT NO.656, 14TH MAIN,
39TH CROSS, 4TH 'T' BLOCK,
JAYANAGAR,
BANGALORE-560041. ... RESPONDENTS
(BY SRI AKSHAYA B. MANJUNATH, ADVOCATE FOR C/R1;
MRS. SNEHA NAGARAJ & SRI HARIKRISHNA PRAMOD,
ADVOCATES FOR R2 AND R3;
R4 SERVED)
THIS M.F.A. IS FILED UNDER SECTION 76 OF MENTAL
HEALTH ACT, AGAINST THE ORDER DATED 15.09.2021 PASSED
ON IA NO.10 IN O.S.NO.202/2017 ON THE FILE OF THE LXI
ADDITIONAL CITY CIVIL SESSIONS JUDGE, BENGALURU CITY,
(CCH-62), ALLOWING IA NO.10 FILED UNDER SECTION 50(1)
(4) OF MENTAL HEALTH ACT, 1987 READ WITH SECTION 151 OF
CPC.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.07.2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the order dated 15.09.2021, passed on I.A.No.10 in O.S.No.202/2017, on the file of the LXI Additional City Civil Sessions Judge, Bengaluru City (CCH-62), allowing I.A.No.10 filed under Section 50(1), (4) of the Mental Health Act, 1987 ('the Act for short) read with Section 151 of CPC for appointment of psychiatrist who is expert in the field to ascertain the mental capacity of the plaintiff and to submit the report.
2. The factual matrix of the case of the plaintiff is that the suit is filed for the relief of declaration to declare that all the acts done by defendant Nos.1 and 2 i.e., selling of the property of unsound mind plaintiff without seeking any permission from the Court or appointment of guardian as null and void. The plaintiff also interalia filed I.A.No.10 under Section 50(1) and (4) of Mental Health Act, 1987 read with Section 151 of CPC praying the Court to appoint a Senior Psychiatrist or a Psychologist an expert in the field to assess the mental condition of the plaintiff and call for report. In support of the application, an affidavit is sworn to by the next friend that the plaintiff is the son of M.R. Krishnaswamy Iyengar and Jaya Krishnaswamy and suit 4 schedule A, B and C properties are the properties of M.R. Krishnaswamy Iyengar and Jaya Krishnaswmay and both of them are no more. The plaintiff succeeded to the estate of them and he is of unsound mind and he is incapable of understanding things and he is suffering from mental disorder. The alienation made by the plaintiff in favour of defendant Nos.3 and 4 in collusion with defendant Nos.1 and 2, cannot be considered as a valid alienation and reiterated that without the appointment of guardian to protect the interest of the plaintiff, any alienation made by defendant Nos.1 and 2 cannot be considered as valid alienation.
3. The said application was resisted by the defendants contending that the very suit itself is not maintainable and the plaintiff has filed an application only with an intention to protract the proceedings. In order to prove the fact that he is of unsound mind, no material is placed before the Court. The defendants filed the written statement contending the very status of the next friend who has filed the suit and question of cheating the plaintiff does not arise and there are no bonafide in the application.
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4. The Trial Court having considered the application and the grounds urged in the application, affidavit and also taking note of the objections, comes to the conclusion that defendant Nos.1 to 3 have contended that question of appointing Psychiatrist does not arise at all because under the provisions, the application filed by the plaintiff is not maintainable and he is not suffering from any mental disorder. It is the contention of the defendants that the plaintiff ought to have filed a suit, but filed an application under Order 32 Rule 15 of CPC to hold a preliminary enquiry on the mental capacity of the plaintiff. Order 32 Rule 15 of CPC clearly establishes that at the time of institution of the suit, an enquiry has to be held by the Court regarding mental status of the person and after coming to the conclusion that he is of unsound mind, then it has to proceed with the suit authorizing the guardian to proceed with the case. Hence, he cannot invoke Section 50 of the Act. But the Trial Court having considered the material on record and also considering the report of NIMHANS, taken note of the fact that the average intelligence on the test and IQ, his mental age is of 6 years and 6 months and IQ is 41 and shows his below average in immediate memory test. He is having functioning 6 inappropriate or moderately or below average intelligence on the test given. The Trial Court considered the same and held that the report is necessary in order to take a decision with regard to the mental capacity of the plaintiff since he has been represented through next friend. The Trial Court also comes to the conclusion having taken note of the specific averment made in the application and also considering the objections. The Court will have to hold an enquiry with regard to the mental capacity of the plaintiff by giving an opportunity to the defendants to cross-examine the witnesses, who have been examined before the Court to prove the aspect of mental capacity of the plaintiff and then finding has to be given by the Court and hence allowed the application and the same is challenged before this Court in this appeal.
5. The main contention of the learned counsel for the appellant is that the Court below failed to take note of the procedure contemplated under Section 50 of the Act. Section 50(2) of the Act mandates that the Court has to issue notice to the mentally ill person or direct the petitioner who has filed the petition to produce the mentally ill person before the Court and the Court has to personally examine the said person and Court 7 also shall call for the report from the concerned health authority so far as the mentally ill person is concerned, before passing any orders on the application filed under Sections 50, 52, 53, 54, 55, 56 and 57 of the Act. Hence, it is clear that that Trial Court has not followed the guidance issued by the Hon'ble Court and hence the order requires to be set aside. The learned counsel would contend that the Judge has not followed the well settled law laid down under Order 32 Rule 15 of CPC and enquiry ought to have been conducted and enquiry should consist not only of examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the Judge, either in open Court or chambers, and as Courts are generally presided over by laymen, as a matter of precaution, the evidence of medical expert should be taken under Section 45 of the Evidence Act. The Trial Court ought to have issued notice to the mentally ill person and complied with the provisions. Whether the original plaintiff is unsound mind person or not ought to have been decided and there is a clear violation of the guidelines of Supreme Court and without following the procedure, the same is considered and passed the order.
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6. The learned counsel for the appellant relied upon the judgment of Madhya Pradesh High Court in the case of MOHD. YUNUS MUNSHI v. PUBLIC IN GENERAL reported in ILR (2017) M.P. 2434 and brought to the notice of this Court paragraph No.5 with regard to compliance of Section 51 of the Act i.e., the District Court is required to record its findings on two issues, namely (i) whether the alleged mentally ill person is in fact mentally ill or not? (ii) if such person is mentally ill, then whether he is incapable of taking care of himself or managing his property?
7. The learned counsel also brought to the notice of this Court the judgment of Jammu and Kashmir High Court in the case of MURTAZA NASIR v. NAZIR AHMED WANI AND OTHERS reported in AIR 2006 JAMMU AND KASHMIR 55, wherein in paragraph No.5 discussed with regard to it is appropriate to observe that the procedure adopted by learned District Judge while conducting the inquisition proceedings under reference does not appear to be wholly in accordance with the procedure laid down under the Mental Health Act and the compliance of Section 51 by issuing notice and no such procedure is followed and hence it requires interference. 9
8. The learned counsel for the appellant would vehemently contend that an order is passed under the old Act i.e., Mental Health Act, 1987 and new enactment is also brought into force i.e., Mental Healthcare Act, 2017 and the plaintiff ought to have sought the relief under the new Act. The new Act also prescribes the procedure for getting the report and constitution of Mental Health Authority and powers vested with the new Act and constitution of Mental Health Review Board and the relief ought to have sought under the new enactment.
9. Per contra, the learned counsel for respondent No.1 would contend that an application was filed in 2017 March and new Act repealing the old Act came into effect subsequently. When the application was filed, old Act was in force and hence the first contention of the learned counsel for the appellant that ought to have sought the relief under the new Act cannot be accepted. The learned counsel would contend that earlier writ petition was filed and direction was given to consider the I.A. and accordingly order has been passed and committee by NIMHANS also given the report wherein IQ of the plaintiff is recorded. Subsequently, an application is filed to appoint a Psychiatrist, who is having expertise in considering the condition 10 of the plaintiff and the same is also considered by the Trial Court and the Trial Court not taken any decision with regard to whether he is mentally ill or not or whether he is capable to take a decision on his own and in order to come to such a conclusion, an application is filed to get the report and the Trial Court not committed any error. The Trial Court rightly comes to the conclusion that it requires report and after getting the report, an opportunity will be given to the parties and the very contention that an enquiry is conducted under Order 32 Rule 15 of CPC stating that he was of unsound mind, at this juncture cannot be accepted.
10. Having heard the learned counsel for the appellant and the learned counsel for respondent No.1 and also considering the grounds urged in the appeal and also the principles laid down in the judgments referred supra by the learned counsel for the appellant, the points that arise for the consideration of this Court are:
(i) Whether the Trial Court has committed an error in allowing the application filed by respondent No.1/plaintiff and whether it requires interference of this Court?11
(ii) What order?
Point No.(i):
11. Admittedly, an application is filed before the Trial Court under Section 50 of the Act and the provision also says application for judicial inquisition. The pleadings are also clear that the properties are standing in the name of the plaintiff and the suit is filed through next friend. The allegation made in the plaint is that the property belonging to the plaintiff was sold in favour of defendant Nos.3 and 4 by defendant Nos.1 and 2. It is very clear under Section 50 of the Act that judicial inquisition is required to be made by the District Court within the local limits of whose jurisdiction the alleged mentally ill person resides. Section 50(2) of the Act is clear that on receipt of an application under sub-section (1), the District Court shall, by personal service or by such other mode of service as it may deem fit, serve a notice on the alleged mentally ill person to attend at such place and at such time as may be specified in the notice or shall in like manner, serve a notice on the person having the custody of the alleged mentally ill person to produce such person at the said place and at the said time, or being examined by the 12 District Court or by any other person from whom the District Court may call for a report concerning the mentally ill person.
12. In the case on hand, admittedly the report is called from the concerned from the NIMHANS and the same is not in dispute. The report also discloses that his behaviour is like a person of 6 to 10 years old and mental IQ is only 41 and the same is also discussed by the Trial Court while passing the order. In paragraph No.18, an observation is made that next friend of the plaintiff produced the photographs of the plaintiff and psychologist assessment to the Court of Ms.Jayanthi M, Psychologist and Hypo Therapist, which goes to show that the plaintiff is suffering from some mental disorder and also report is moderately below average in intelligence. His basal age is 3 years and terminal age is 12 years. Hence, the Court comes to the conclusion that it is just and proper to appoint the applicant as the next friend of the plaintiff to institute the suit and I.A. was allowed permitting the next friend to contest the matter on behalf of the plaintiff. The Trial Court also taken note of Order 32 Rule 15 of CPC that even during the pendency of the suit, the Court can adjudge the mental capacity of the plaintiff and also with regard to the unsoundness of mind. It is not in dispute that 13 the defendants have denied that he is not mentally incapacitated. Hence, the very assessment is required and already mental capacity of the plaintiff is assessed through a psychologist as mentioned in paragraph No.18 of the Trial Court order and now the plaintiff is seeking for appointment of expert i.e., for appointing Senior Psychiatrist or a Psychologist and the same is also to assess the mental condition of the plaintiff and call for report. When such being the case, it is nothing but compliance of Section 50 of the Act. The learned counsel for the appellant would contend that the provisions of the Mental Health Act is not complied and the said contention cannot be accepted and an opportunity will be given to the defendants when the report is received to cross-examine the witnesses, who are going to be examined before the Court and the same is observed in the order of the Trial Court in paragraph No.19.
13. The learned counsel for the appellant relied upon the judgment of the Madhya Pradesh High Court, wherein also discussed with regard to Sections 50 and 51 of the Mental Health Act i.e., procedure to be followed in appointment and brought to the notice of this Court paragraph No.5 of the said judgment. I have already pointed out that there is a preliminary opinion of 14 the doctor and now sought for an expert opinion and hence it cannot be contended that an order has been passed violating Sections 50 and 52 to 54 of the Act. The Jammu and Kashmir High Court also discussed with regard to the inquisition proceeding under reference. The Court is also getting the report with regard to condition of the plaintiff and already based on the opinion given by the earlier psychologist, next friend was permitted to prosecute the matter on behalf of the plaintiff. The specific allegation is with regard to disposing of the property belonging to mental ill person and when such an issue is involved and also order of the Trial Court discloses that photographs of the mentally ill person was also produced and earlier report was taken note of with regard to his behaviour is that of 6 to 10 years old and IQ is 41 and when the report is called, it cannot be contended that there is no compliance of Mental Health Act. Hence, I do not find any merit in the appeal since report is sought for to assess the mental capacity of the plaintiff. Hence, I do not find any ground to set aside the order of the Trial Court.
14. The other contention of the learned counsel for the appellant is that the plaintiff ought to have filed an application 15 under the new Act i.e., Mental Healthcare Act, 2017. Admittedly, before repealing of old Act only, an application was filed and when such being the case, the very contention of the learned counsel for the appellant that relief ought to have been sought under the 2017 Act cannot be accepted. The 2017 Act is only prospective effect and not retrospective effect. As on the date of filing of the application, old Act was not repealed and hence I do not find any force in the contention of the learned counsel for the appellant. Hence, I answer point No.(i) in the negative since no prejudice will be caused to the appellant if report is obtained from Senior Psychologist and Psychiatrist and the same will be helpful to the Court to adjudicate the mental illness of the plaintiff.
Point No.(ii):
15. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed. The Trial Court is directed to dispose of the matter within a period of one year from today.
Sd/-
JUDGE MD