Writ petition challenging an order rejecting application to appoint guardian for a defendant allegedly suffering from mental infirmity. Court held trial judge erred in technical rejection and directed inquiry under CPC.
Impugned order set aside. Trial Court directed to hold inquiry under Rule 15 Order XXXII CPC within three months.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4801 OF 2009
Hemant Amrutlal Gandhi versus Prakjash Zumbarlal Gandhi and others
Petitioner
Respondents
Amit M. Shete for petitioner. Ashok B. Tajane for respondent no.4.
CORAM : A.S.OKA, J.
DATE : 23rd April 2010
PC :
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rejected on the ground that the application ought to have been made on the date of institution of suit or at least at the time of recording of evidence. The learned Judge observed that it was the duty of the petitioner to adduce evidence regarding mental disability of the first respondent.
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"15. Rules 1 to 14 (except rule 2-A) to apply to persons of unsound mind.-
Rules 1 to 14 (except rule 2-A) 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."
In view of the said Rule, once it is alleged in the plaint that a party defendant to the suit is incapable, by reason of mental infirmity, to protect his interests, the Court is under an obligation to hold an inquiry. On this aspect, law has been laid down by this Court in case of Somnath (supra). This Court has considered the provisions of Rule 15 of Order XXXII of the said Code and has held that without there being any application made in that behalf, it is the duty of the Court to hold an inquiry when such assertion found in the plaint. In the plaint, there is an assertion regarding mental disability of the first respondent. In fact, on the basis of the averments made in the plaint, the Court ought to have ordered an inquiry. If ultimately on inquiry it is found that the first respondent is incapable by reason of any mental infirmity from protecting his interests, the cause of the said defendant will not be properly defended unless he is properly represented. The learned Trial Judge has ignored Rule 15 of Order XXXII of the said Code and by taking hyper-technical view, he has rejected the
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application. The impugned order will have to be set aside and the Trial Court will have to be directed to hold an inquiry.
B) The Trial Court is directed to hold an inquiry as provided under Rule 15 of Order XXXII of the said Code. After holding an inquiry, the Trial Court will pass appropriate order. The application made by the petitioner at Exhibit-82 shall be considered on merits after holding such inquiry;
C) The inquiry shall be concluded as expeditiously as possible and in any event within a period of three months from the date on which the writ of this order is received by the Trial Court;
(A.S.OKA, J.)
2 issues framed by the court
Whether the trial court was under a duty to hold an inquiry regarding mental incapacity of a defendant despite delay in application?
Whether Rule 15 of Order XXXII CPC mandates the court to investigate mental infirmity when alleged in the plaint?
Colour shows how this judgement treated each authority
Somnath Vs. Tipanna Ramchandra JannuRelied on¶15
Somnath Vs. Tipanna Ramchandra Jannu (AIR-1973-Bombay-276) · Who else cites this
1 provisions across 1 enactments
Hemant Amrutlal Gandhi
Prakjash Zumbarlal Gandhi
A.S. Oka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
