IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO. 98 of 2011 Date of decision: 2.8.2011 Ms.Ram Aasri ….Petitioner Versus Kuldip Singh ….Respondent Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes For the petitioner: Mr.Ajay Kumar, Advocate with Mr.Dheeraj Kumar, Advocate For the respondent: Mr. Ramakant Sharma, Advocate. _________________________________________________ Deepak Gupta, J. (oral) 1. This Petition is directed by the defendant against the order dated 18.2.2011 whereby the application filed by the defendant under Order 32 Rule 15 CPC to determine the question whether the plaintiff is a person of unsound mind has been rejected. 2. The brief facts of the case are that the respondent Kuldip Singh filed a suit for declaration that he is exclusive owner in possession of the suit land on the basis of Will dated 13.3.1994 allegedly executed in his favour by late Sh.Bantu, father of defendant Ram Aasri. The defendant Ram Aasri in her written 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 statement took a plea that the plaintiff is a simpleton person and is also a person of unsound mind. According to her, he is dependent upon his family members. It was alleged that Devi Chand, brother-in-law of the plaintiff in order to grab the property has procured a false power of attorney in his favour. 3. It is not necessary to give other facts of the case but during the proceedings the defendant filed an application that the plaintiff be directed to appear in person so that an inquiry could be conducted whether he is a person of unsound mind or not in terms of Order 32 Rule 15 CPC. An ancillary question raised was that in case the plaintiff is of unsound mind he could not have executed a power of attorney in favour of Devi Chand. 4. The learned trial Court rejected the application on the ground that such an application should have been filed at the time of filing of the written statement. Secondly, the learned trial Court was of the opinion that in the written statement the defendant had herself stated that the plaintiff used to come to Delhi to get money from her and that he had procured the false Will in connivance with the marginal witnesses. The learned trial 3 Court thus held that both these contradictory stands could not be taken. 5. However, the learned trial Court lost sight of the fact that if an application is made that a person is of unsound mind or is unable to look after his interest then a duty is cast upon the Court to find out the truth and ensure that interest of such person who is incapable of looking after his own interest is protected by the Court. The position of such a person is that of a minor and therefore it is the duty of the Court to ensure that the minor’s interest is protected, if necessary, by appointment of a court guardian. The Court should realize that procedural law is not meant only to be used as a technical tool but should be used as an instrument to further the cause of justice. 6. In view of the allegations and counter allegations made by the parties, I had directed that Sh.Kuldip Singh son of Shri Rattan Singh be produced in the Court. Today, I have talked to him in the presence of the counsel. This Court cannot decide whether a person is of unsound mind or not because that is a subject which falls in the realm of medical science. However, with the experience gained both at the Bar and in the 4 Bench one can form a considered prima facie opinion. On questioning Sh.Kuldip Singh, I found that prima facie he cannot be termed to be insane or mentally unsound. He understands questions and answer simple questions put to him. However, as soon as complicated questions are put to him, he is unable to answer the same. It appears that he is of below average intelligence and can be termed as a simpleton person. It is not even clear whether he can protect or look after his own interest. In fact, I am doubtful whether he can actually protect his own interest while suing or being sued. This is probably the reason why the brother-in-law appeared in the witness box because Kuldip Singh could not have survived the volley of questions he would have faced in cross examination, not because he want to tell lie but because he cannot comprehend or understand legal or complicated questions. At the same time, he is aware of the present suit and it cannot be said that he is incapable of knowing that a suit has been filed on his behalf. At least at this stage, it cannot be said that he is so mentally infirm as to not know what is being done on his behalf. 5 7. Rule 15 of Order 32 CPC makes it clear that it not only applies to people of unsound mind but also applies to people who are found by the Court, on inquiry, to be incapable by reason or any mental infirmity or protecting his interest while being sued. 8. The inquiry, I have conducted is only a preliminary inquiry for deciding the question as to whether Kuldip Singh should have produced before the learned trial Court or not. I am of the considered view that Kuldip Singh should be produced before the learned trial Court who after detailed inquiry, and medical examination if found necessary, shall determine the exact status of Kuldip Singh. It is also made clear that observations of this Court are only in the nature of prima facie observations to deal with the petition and the learned trial court shall be required to conduct a proper inquiry and then decide whether the suit has been properly instituted on behalf of the plaintiff or not and whether he is capable of looking after his own interest or not. 9. In view of the above discussion, this petition is allowed, the decision of the learned trial Court is set-aside and the matter is remanded to it to 6 decide afresh in terms of the above directions. Stay order dated 28.3.2011 is vacated. Parties through their learned counsel are directed to appear before the learned trial Court on 26th September, 2011. No costs. August 2, 2011 (Deepak Gupta) PV Judge