C. R. No. 2703 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 2703 of 2010 Date of Decision : January 03, 2011 Dilbagh Singh .... Petitioner Vs. Sawinder Kaur .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Bikramjit Arora, Advocate for the petitioner. Mr. M. S. Bal, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Dilbagh Singh has filed suit through his wife Daljit Kaur as next friend by instituting plaint Annexure P-1 inter alia alleging that plaintiff Dilbagh Singh is person of unsound mind and is mentally infirm and cannot himself file the suit and therefore, the suit was being filed through his wife as next friend. Learned Civil Judge (Junior Division), Tarn Taran heard the parties on the point whether plaintiff Dilbagh Singh is of unsound mind. C. R. No. 2703 of 2010 2 The trial court, in impugned order dated 23.02.2010 (Annexure P-5), observed that jurisdiction to hold any person as person of unsound mind is vested with District Judge under the provisions of the Mental Health Act, 1987 (in short – the Act) and therefore, the trial court could not give any finding regarding this question and if advised, the plaintiff may approach the concerned court. The trial court adjourned the case requiring the plaintiff to make up his mind as to whether he wanted to pursue the suit or not. Feeling aggrieved by the aforesaid order (Annexure P-5) passed by the trial court, plaintiff, through his wife as next friend, has approached this Court by way of instant revision petition under Article 227 of the Constitution of India. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that power and jurisdiction of civil court to hold inquiry under Order 32 Rule 15 of the Code of Civil Procedure (in short – CPC) to determine as to whether a party to the suit is of unsound mind or not has not been taken away by Section 50 of the Act and therefore, the trial court was required to hold inquiry to determine as to whether the plaintiff is of unsound mind or not. It was pointed out that if a person has already been adjudged to be of unsound mind, then no further inquiry is required to be held by civil court under C. R. No. 2703 of 2010 3 Order 32 Rule 15 CPC, but if a man has not been so adjudged to be of unsound mind under the Act, then it is for the civil court to hold inquiry under Order 32 Rule 15 CPC as to whether a party to the suit is of unsound mind or not. Accordingly, learned counsel for the petitioner contended that the trial court committed jurisdictional error by not holding the requisite inquiry under Order 32 Rule 15 CPC. On the contrary, learned counsel for the respondent contended that vide report (Annexure P-4) given by Board of Doctors, pursuant to order of the trial court, plaintiff has been reported to be case of `Moderate Mental Retardation' and consequently, the plaintiff cannot be said to be of unsound mind. I have carefully considered the rival contentions. Order 32 Rule 15 CPC is reproduced hereunder :- “[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 C. R. No. 2703 of 2010 4 reason of any mental infirmity, of protecting their interest when suing or being sued.]” Perusal of the aforesaid statutory provision reveals that Rules 1 to 14 of Order 32 CPC would apply to a person, who has been adjudged (either before or during pendency of the suit) to be of unsound mind. It further lays down that the aforesaid rules shall also apply to a person, who although not so adjudged, is found by the court on inquiry to be incapable, by reason of mental infirmity, of protecting his interest when suing or being sued. It is thus manifest from a bare reading of the aforesaid provision that it consists of two parts. The first part applies where a person has been adjudged to be of unsound mind. In that event, no further inquiry is required to be held by the civil court on this question and straightway, provisions of Order 32 Rules 1 to 14 CPC would apply to such a person, who has been adjudged to be of unsound mind. However, the second part deals with the situation, where the person has not been adjudged to be of unsound mind. In that event, the trial court has to hold an inquiry as to whether such person is, by reason of any mental infirmity, incapable of protecting his interest as party to the suit. In the instant case, the plaintiff has not been adjudged to be of unsound mind either under the Act or in any other proceedings. Consequently, second part of Order 32 Rule 15 CPC applies to the instant case, and therefore, it was obligatory on the trial court C. R. No. 2703 of 2010 5 to conduct inquiry to find out as to whether the plaintiff, by reason of any mental infirmity, is incapable of protecting his interest as plaintiff in the suit. The trial court has, however, failed to conduct any such inquiry. In other words, the trial court has failed to exercise jurisdiction, which vested in it under Order 32 Rule 15 CPC. The trial court has committed illegality and jurisdictional error by abdicating its power and responsibility to hold necessary inquiry under Order 32 Rule 15 CPC. Consequently, the impugned order is liable to be set aside in exercise of revisional jurisdiction under Article 227 of the Constitution of India. As regards contention of counsel for the respondent that in view of report (Annexure P-4), the plaintiff cannot be said to be person of unsound mind, it is for the trial court to assess the probative value of the said report after recording evidence of both sides, while holding inquiry under Order 32 Rule 15 CPC. It would not be appropriate for this Court to comment on the probative value of report (Annexure P-4). However, it may be mentioned that second part of Order 32 Rule 15 CPC does not speak of a person of unsound mind. It rather states that the Court has to find out if a party to the suit is, by reason of any mental infirmity, incapable of protecting his interest. Consequently, it is for the trial court to hold inquiry into the aforesaid aspect relating to the plaintiff and to record finding in accordance with law. C. R. No. 2703 of 2010 6 For the reasons aforesaid, the instant revision petition is allowed. Impugned order (Annexure P-5) passed by the trial court is set aside. The trial court is directed to hold necessary inquiry in accordance with law, as required by second part of Order 32 Rule 15 CPC to determine whether the plaintiff is, by reason of any mental infirmity, incapable of protecting his own interest in the suit as plaintiff. January 03, 2011 ( L. N. MITTAL ) monika JUDGE