HIGH COURT OF CHHATT!80ARH AT BILASPUR Writ Petition iC) No.1647 of 2007 V Respondeots Defendants Petitioners 1. Vohit Ram Dewangan, S/o Shyam Lai PlainCffs Dewangan, Aged about 35 ysare, Occupation: Business. 2. Tilak Ram ISewangan, ^o Shyam Lat Dewangan, Aged about 28 years, Both R/o Baspai Para, Near Durga Taikies, Ward No.37, Rajnandflaon, Tehsii & District Rajnandgaon, Chhattisgarh. Ve/sus 1. Saifut Hasan alias Raza, S/o Shanrehu! Hasan, ^ed about 22 yeara. Cast®: Musaiman, R/o Gudaku Une, Ward No.23, Rajnandgaon, Teh. & Distt.: Rajnandgaon, Chhattisgarh. 2. Ajij Hasan alias Nanna,_S/o Maqbul Hasan, Aged about 37 years, Caste: Musalman, R/o Gudaku Line, Ward No.23, Rajnandgaon, Tee. & Distt.: Rajnandgaon, Chhattisgarh. 3. Zia-ul Hasan aiias Budhu, S/o Mahboeb Hasan, Aged about 45 yeare, Caste: Musaiman, R/o Gudaku Line, Ward No.23, Rajnandgaon, Teh. & Distt.: Rajnandgaon, Chhattisgarh. 4. Rahees Ahmed Gori aiias Bhuru, S/o Ztlani Ahmed, Aged about 24 years, Caste: Musafman, R/o Juni Hatri, Gudaku Line, Ward No.23, Rajnandgaon, Teh & Distt.: Rajnandgaon, Chhattisgarti. 5. Zafarullah, S/o Late Mcrfid.Shafl, /^ed about 45 years, OccupatioR.'Businsss, Caste:Musalmap, Rio Gudaku Line, Ward No.23, Rajnandgaon, Teh. & Distt.: Rajnandgaon. ChhatBsgarh. (Writ Pstition under Article 227 of the Consttution ef India) Mr.P.K.Verma, Senior Advocate with Mr.P.R.Patankar, counsel for the petitioners. Mr.P.K.C.Tiwsffi, Senior /telvocate with Mr.Shashi Bhushan, counsel for th® respondents. ^- (SB: Hon'Me Mr. T.P. Sharma, A) ORDERfORALI (24-8-2011) 1. By this vwit petition under Articte 226/227 sf the ConsUution of India th® peUtionere have dialtenged the legality & propristy ofthe order dated 1.8.2006 passed by the District Juc^e, Rajnandgoan in Civil Suit No.SA/2005, v^iereby the Court below has anlved at a finding that r^pondent No.5 namely, Zafaruiiah was incapabte to dsfend him by reason <rf mental infinnity on ftie basis <rf question put to him on prsvious date of hearing. 2. I have heard tearned counsel ft>r th®parttes and perused ttie order impugned. 3. Order impugnsd reveals that on the basis of quesfion put to respwdent No.5 on previous date of hearing the Court below has prima facie wrived at a finding that respondent No.5 was incapable by reaa>n of menta! infirmtty to defend his case and on the basis of atoresaid ground, applicafion for appointment of guardian has been passed in accordance wtth Order^ Rule 3 of the Cocte of Civi! Procedure (for short 'Code'). Order impi^ned reveals fcat the Court below has not conducted any inquiry in tenas ofOrder 32 Rute 3(1) read with Order 32 Rute 15 of die Cod®and has not prwided qaportunilyte both the parties, thsrefore, such part (rf order is notsustainaye. 4. ConsequenUy, the writ petition te altowsd. Order impugned to tfss extent cf aforesaid finding is herebyset aside. Court befow shall conduct an enquiry in accordance with Order 32 Rute 3(1) read wnth Order 32 F&iie 15 erfthe Code relating to incapable of respondent No.5 by reason of any raeniai infinnity after providing opportunity of hearing to the parties and pass fce order afrosh. No order as to costs. —- Sd/- T.P. Sharma Judge ^ <^