IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 254 of 2010 Date of decision: 08.09.2010 Bhag Dutt & others …Petitioners. Versus Prakash & another …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. O.C. Sharma, Advocate. For respondent No. 2: Mr. P.S. Goverdhan, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 24.05.2010, whereby the learned trial Court has held that the defendant No. 1 is unable to protect his own interest due to infirmity of mental state and has, therefore, directed that a guardian be appointed to look after his interest. 2. I find no illegality in the order passed by the learned trial Court. In fact, the learned trial Court has acted strictly in accordance with the provisions of Order 32 Rule 15 CPC, which read as follows: “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 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 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.” A bare perusal of Rule 15 shows that the Court itself can make an enquiry to enquire and decide whether the person, who is appearing before the Court, is by reason of mental infirmity, incapable of protecting his / her interest. 3. The Court in its order has recorded that certain interlocutory questions were asked from defendant No. 1 and since defendant No. 1 could not satisfactorily reply to these questions and he could not even correctly tell his own age nor could he state that what were the facts of the case, the Court came to the conclusion that a guardian was required to be appointed to protect the interest of defendant No. 1. There is no illegality in the order of the learned trial Court. 4. Mr. O.C. Sharma, learned counsel for the petitioners submits that the Court should not have itself embarked upon this enquiry and should have appointed a medical expert to go into this matter. Secondly, reliance on some certificate issued by the Pradhan of Gram Panchayat has been placed in which it is certified that the defendant No. 1 has been given employment under the National Rural Employment Guarantee Act (NREGA). On enquiry of the Court, Mr. O.C. Sharma has firstly stated that this certificate 3 was not on the record of the trial Court and has only been placed on record of this petition. Therefore, such document is not required to be looked into. 5. Mr. O.C. Sharma also states that on 25.9.2008, an application under Section 148 had been moved for enlargement of the time on the ground that defendant No. 1 had undergone operation of Hernia and was bed ridden. He submits that this shows that defendant No. 1 is capable of looking after his interest. It is further urged that defendant No. 1 had appeared through counsel on 4.8.2008 and it had been stated that his interest clashes with that of his son, defendant No. 2. Mr. Sharma submits that this application now filed was only a way to get out of the agreement entered into between the parties. 6. At this stage, this Court is not going into the merits of the main case. Whether defendant No. 1 was unfit or mentally unsound at the time when the sale deed was executed, is a question which has to be decided on merits. By means of this application, the Court has only appointed a guardian to look after the interest of defendant No. 1. This causes no prejudice to the petitioners. The findings on this application cannot be treated as findings in the main suit and just because, prima facie, it has been held that defendant No. 1 cannot look after his own interest does not mean that there is any adjudication on merits that he is of unsound mind and could not execute the sale deed. The issue as to whether defendant No. 1 was incapable of executing the sale deed shall be decided on the basis of the evidence led in the main 4 suit during which, if the plaintiffs so desire, they can get defendant No. 1 medically examined to determine his mental capacity. 7. The petition is disposed of with these observations. No orders as to costs. (Deepak Gupta) Judge September 8, 2010 (rajni)