1 fa759 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.759 OF 2011 IN GUARDIANSHIP PETITION NO.11 OF 2009 Mrs.Rofina Jeronimo Pinto ...Appellant vs. Mr.Kunal Bhanage for the appellant Mr.Chirag Shah i/b Mr.J.J.Shah for the intervenor CORAM :A.S.OKA,J. DATE ON WHICH SUBMISSIONS ARE HEARD: 12TH JULY 2011 DATE ON WHICH JUDGMENT IS PRONOUNCED: 8TH AUGUST 2011 JUDGMENT : 1 By this First Appeal, the appellant has taken an exception to the Judgment and Order dated 1 st February 2011 passed by the learned Judge of the City Civil Court. The Appellant filed a petition invoking section 50, 53 and 65 of the Mental Health Act,1987 (hereinafter referred to as the said Act). The appellant stated one Leon Joseph Oliveira is her nephew. It is stated that the said Leon is the son of the sister of the appellant s late husband. Both the parents of the said Leon are no more. The said Leon is residing in room no.12-B, 4th floor, Mavji Manson, 15,Bala Miya Lane, Mahim, Bombay 400 016(hereinafter referred to as the said room) as a tenant. The Landlord of the said room has filed a suit for eviction which is pending in the Court of Small Causes. It is contended that the said Leon is suffering from mental illness and is of unsound mind. Reliance is placed on medical reports and case papers of J.J.Hospital. It is contended that the said Leon is not mentally fit to take care of himself or his property. It 2 fa759 is contended that though the landlord is aware that the said Leon is mentally ill, he is trying to take undue advantage of his illness by evicting the said Leon. It is stated that the said Leon has recently declined to allow the appellant to enter into his room. Therefore, prayer is made that the appellant be declared as guardian of said Leon and manager of the said property of the said Leon. Another prayer was made for holding an enquiry into mental health of the said Leon. 2 In the said petition, one Rajesh Mavji Savla intervened who is the plaintiff in the suit for eviction filed against the said Leon. The said Rajesh opposed the application. 3 It appears that the learned trial Judge has issued notice to the said Leon as well as to one Sachin Makharia. The said Sachin is the proprietor of a business with whom the said Leon is allegedly working as an employee. The report of the bailiff showed that the said Leon refused to accept the service and informed the bailiff to hand over the notice to Ms Vyas, Advocate representing the said Leon in the Court of Small Causes. A copy of the notice was affixed on the door of the room of the said Leon. 4 The learned Judge observed that the appellant did not file report of any noted Psychiatrist about the condition of the said Leon. The learned Judge observed that Mr.Leon is freely moving in local trains and is visiting his place of work at Fort, Mumbai. The learned Judge observed that employer of the said Leon has stated that Leon goes to work two or three days in a week. The learned Judge observed that the certificate of Dr. (Mrs.)Joyce Sequeira dated 12th December 2006 cannot be 3 fa759 considered as Dr.(Mrs.) Joyce Sequeira is not a qualified Psychiatrist. The learned Judge observed that she had issued directions to the petitioner to get the said Leon examined by the Psychiatrist and to produce the report but the said order has not been complied with. Therefore, the learned Judge rejected the petition by holding that the said Leon is not a mentally ill person and he is capable of taking care of himself and managing his property. 5 The learned counsel for the appellant invited the attention of the Court to the relevant provisions of the said Act. He submitted that in view of section 50 of the said Act, it was the duty of the Court to procure the personal presence of the alleged mentally ill person before the Court. He submitted that the mentally ill person could have been ordered to be examined by some Psychiatrist. He submitted that without making any effort to secure presence of the said Leon before the Court, the petition filed by the appellant has been decided. His submission is that the Court has not done its duty. The learned counsel for the intervenor submitted that the said Leon is not a mentally ill person and in fact he has appointed an Advocate to contest the eviction suit filed by the said intervenor. He submitted that similar application was filed by the appellant before the Court of Small Causes which was rejected. He submitted that the said Leon is regularly depositing the rent. It must be noted that on one of the dates fixed for hearing the appeal, on the request made by the learned counsel for the appellant, the Advocate representing the said Leon in the Court of Small Causes appeared before this Court and stated that the said Leon has not met her for quite some time. 4 fa759 6 I have given careful consideration to the submissions. Section 50 of the said Act reads thus : “Application for judicial inquisition 50. Application for judicial inquisition.—(1) Where an alleged mentally ill person is possessed of property, an application for holding an inquisition into the mental condition of such person may be made either— (a) by any of his relatives, or (b) by a public curator appointed under the Indian Succession Act 1925 (39 of 1925), or (c) by the Advocate-General of the State in which the alleged mentally ill person resides, or (d) where the property of the alleged mentally ill person comprises land or interest in land, or where the property or part thereof is of such a nature as can lawfully be entrusted for management to a Court of Wards established under any law for the time being in force in the State, by the Collector of the District in which such land is situate, to the District Court within the local limits of whose jurisdiction the alleged mentally ill person resides. (2) 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, for being examined by the District Court or by any other person from whom the District Court may call for a report concerning the mentally ill person: Provided that, if the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may cause her to be examined by issuing a commission as provided in the Code of Civil Procedure, 1908 (5 of 1908). (3) A copy of the notice under sub-section (2) shall also be served upon the applicant and upon any relative of the alleged mentally ill person or other person who, in the opinion of the District Court, shall have notice of judicial inquisition to be held by it. (4) For the purpose of holding the inquisition applied for, the District Court may appoint two or more persons to act as assessors.” 7 It must be noted here that there is a vast difference between the provisions of Indian Lunacy Act, 1912 and the said Act of 1987. The said Act of 1987 deals with mentally ill persons. Under sub section 1 of section 2 of the said Act, mentally ill person is defined to mean a person who is in need of treatment by reason of any mental disorder other than mental retardation. Thus, the concept of lunacy is different from the concept of mentally ill person. 5 fa759 8 The appellant had invoked sub section 1 of section 50 of the said Act by making an application. Under sub section 2 the Trial Court was required to procure the presence of the alleged mentally ill person before the Court or at such other place as may be specified in the notice. The presence is required to be secured so that the person can be examined by the Court or any other person from whom the Court may call for a report. In the present case, though the notice was issued to the said Leon, he declined to accept the same and stated that the same may be served to his Advocate. After receipt of the report of service, the trial Court has not made any effort to procure the presence of the said Leon. 8 The Section 51 of the said Act reads thus: “Issues on which finding should be given by District Court after inquisition 51. Issues on which finding should be given by District Court after inquisition.—On completion of the inquisition, the District Court shall record its findings on,— (i) whether the alleged mentally ill person is in fact mentally ill or not, and (ii) where such person is mentally ill, whether he is incapable of taking care of himself and of managing his property, or incapable of managing his property only.” An application under Section 50 is not an ordinary lis between the parties. Whether the applicant produces the medical certificate on mental health of the alleged mentally ill person or not, it is the duty of the District Court to record findings on the aforesaid two points. Therefore, it is important that the presence of the alleged mentally ill person is procured either before the District Court or at such other place as the District Court may determine. The District Court in proceedings under the said Act can invoke all the powers of Civil Court to procure the personal presence of the alleged mentally ill person. After procuring the presence of the said Leon in the Court, the learned Judge could have 6 fa759 conducted the examination contemplated by Sub Section 2 of section 50. The trial Court could have always called upon the said Leon to get himself examined by a Psychiatrist attached to any Government or Municipal Hospital in the city. In the alternative, the trial Court could have called upon the said Leon to attend before the said Psychiatrist for examination. For procuring the presence of mentally ill person, the trial Court could have always taken the assistance of various statutory authorities. 9 The trial Court has relied upon the statement made by the alleged employer of the said Leon. The duty of the District Court imposed by sub section 2 of section 50 was to ensure that the examination of the alleged mentally ill person is made either by the Court or any other person appointed by the Court. The Court was under an obligation to hold inquisition and under sub section 4 of section 50, there was power in the Court to appoint two or more experts as assessors. Perhaps, the City Civil Court has treated the petition filed by the appellant as a lis between the appellant and the intervenor. Instead of performing its duty under sub section 2 of section 50, the Trial Court erroneously directed the appellant to get the said Leon examined by a Psychiatrist and to produce a report. The said approach of the Court was completely erroneous and inconsistent with the duty imposed be Sections 50 and 51. 10 Therefore, there is no option but to send the matter back to the City Civil Court by keeping all the issues open. Even if the City Civil Court comes to a conclusion that the said Leon is a mentally ill person, whether the appellant is a fit person to be appointed as Guardian or manager of the property is an issue which 7 fa759 will have to be decided by the Trial Court on merits. 11 Hence, I pass the following order : i) Impugned order dated 1st February 2011 is quashed and set aside and the guardian petition no.11 of 2009 is restored to the file of the City Civil Court. ii)The learned Trial Judge shall decide the application afresh in the light of the provisions of section 50 and 51 of the said Act and the observations made in paragraphs 8 to 10 of this Judgment. iii)Petition shall be decided expeditiously. iv)Appeal is partly allowed on above terms with no order as to costs. v) Civil Application no.1471 of 2011 does not survive and the same is disposed of. JUDGE