1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4801 OF 2009 Hemant Amrutlal Gandhi Petitioner versus Prakjash Zumbarlal Gandhi and others Respondents Amit M. Shete for petitioner. Ashok B. Tajane for respondent no.4. CORAM : A.S.OKA, J. DATE : 23rd April 2010 PC : 1. Heard learned counsel for the petitioner and learned counsel for respondent no.4. None appears for the second and third respondents though they are represented by an advocate. The petitioner is the original plaintiff. A suit for perpetual injunction has been filed by the petitioner. The respondents herein are the defendants. The relief is claimed only as against respondent no.4. There is a challenge to the sale deed allegedly executed by respondent no.1 (defendant no.1) on 5th April 2002. The challenge is on the ground that the first respondent has been suffering from mental infirmity and he is mentally retarded. In the suit of the year 2002, an application was made by the petitioner in January 2009 at Exhibit-82 by contending that the first respondent is of unsound mind and, therefore, an officer of the Court be appointed as guardian of the first respondent. By the impugned order, the said application has been 2 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. 2. The learned counsel appearing for the petitioner has challenged the said order dated 3rd March 2009 passed below application at Exhibit-82 by contending that it was the duty of the Court to hold an inquiry as contemplated by Rule 15 of Order XXXII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). He has placed reliance on a decision of the Division Bench of this Court in case of Somnath Vs. Tipanna Ramchandra Jannu (AIR-1973-Bombay-276). He submitted that even assuming that there was delay on the part of the petitioner in making the application, the Court was duty bound to hold an inquiry. 3. The learned counsel for the 4th respondent submitted that there is no foundation for the allegation that the first respondent is of unsound mind. He pointed out that no evidence has been adduced by the petitioner by examining any witness as regards condition of the first respondent. He pointed out that in fact there is a written statement filed jointly filed by the first to fourth respondents which is on record of the suit. He, therefore, submitted that the case made out by the petitioner was not bona fide and, therefore, no interference is called for in writ jurisdiction. 3 4. I have given careful consideration to the submissions. Rule 15 of Order XXXII of the said Code reads thus :- "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 4 application. The impugned order will have to be set aside and the Trial Court will have to be directed to hold an inquiry. 5. Hence, the petition is disposed of by passing following order :- A) The order dated 3rd March 2009 is quashed and set aside; 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; D) All contentions of the parties in the inquiry are kept open; E) The writ petition is partly allowed in the above terms. (A.S.OKA, J.)