1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5095 OF 2009 Deoram s/o Shivram Veer age 59 years, occ.nil r/o Jogeshwarwadi, Tq. Karjat Dist. Ahmednagar through his next friend Bapu s/o Deoram Veer age 23 years, occ. agriculture r/o jogeshwarwadi, Tq. Karjat Dist. Ahmednagar. .. PETITIONER VERSUS Balasaheb Deorao Yadav age 45 years, occ. agriculture r/o Bahirobawadi, Tq. Karjat Dist. Ahmednagar. .. RESPONDENT Mr. V.D. Hon, Advocate for the petitioner. Mr. Anirudha Nimbalkar, Advocate holding for Mr. V.D. Salunke, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 23rd MARCH, 2010 ORAL JUDGMENT : 2 1 Heard. 2 Rule. With the consent of the parties the matter is taken up for final disposal at admission stage. 3 An application tendered by the petitioner / original defendant seeking appointment of next friend to prosecute the litigation on behalf of the defendant came to be rejected by the trial court. 4 It is the contention of the defendant that he is a person of unsound mind. It is contended that he is suffering mental illness since last more than a year and he is as such unable to prosecute the case lodged against him by the plaintiff / respondent herein. Initially, application tendered by the defendant came to be rejected by the trial court in view of order passed on 2-9-2008. Petitioner / original defendant again presented the application seeking review of the order on 23-9-2008. However, the application seeking review of the earlier order also came to be rejected by the trial court on 6-7-2009. Petitioner / original defendant is raising exception to both the orders passed by the trial court by way of presenting the instant petition. 3 5 Mr. Hon, learned counsel for the petitioner contends that the court has not followed the procedure as contemplated by Order 33 Rule 15 of the Code of Civil Procedure and without holding proper enquiry, the decision has been rendered by the trial court. It is also pointed out by learned counsel for the petitioner that there is evidence in the form of certificates issued by the experts who have certified that the petitioner is suffering from mental illness. Learned counsel for the respondent contends that the petitioner / original defendant is trying to prolong the matter and he is taking undue advantage of the procedural formalities. It is contended that if the defendant was suffering from mental illness since last more than one year, the defendant could have presented the application at an earliest opportunity and ought not to have waited for more than a year. It is also contended that the defendant permitted the plaintiff to lead his evidence and not only that but has cross examined the witnesses including the plaintiff. It is also alleged by learned counsel for the respondent / original plaintiff that defendant was personally giving instructions to his counsel while hearing of the matter was in progress. It is contended that the application tendered has been rightly rejected by the trial court. 6 In order to ascertain as to whether the defendant is really suffering 4 from mental illness, the trial court is required to conduct enquiry in that regard as contemplated by Rule 33 Order 15 of the Code of Civil Procedure. It was open for the court to call upon the defendant to appear in person so as to ascertain whether he really suffers from mental disorder. The court is required to thoroughly enquire into the matter and after taking into consideration the objections that may be raised by the respondent / original plaintiff, shall have to decide the application. In the instant matter, it appears that the court has not followed the procedure as contemplated by Rule 33 of the Code of Civil Procedure and has rejected the application in summary manner. In the facts and circumstances of the case, therefore, it would be appropriate to direct the trial court to decide the application by extending an opportunity to both the sides to raise their contentions. It would be the responsibility of the petitioner who is prosecuting the application through his next friend to lead evidence in respect of defendant's mental illness before the court. The trial court after considering the evidence that may be lead by the petitioner/ original defendant through his next friend and considering the contentions of the plaintiff, may proceed to decide the application afresh. Trial court shall proceed to decide the application after observing the procedure prescribed in that behalf as expeditiously as possible preferably within three months from the 5 date of receipt of writ of this court. For the reasons stated above, rule is accordingly made absolute to the extent specified above. In the facts and circumstance of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp5095.09.odt