THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.1736 of 2009 Date of Order: 22-10-2009 Between: Y.Subba Rao ..Petitioner and 1.Thalluri Subba Rao and another ..Respondents. The court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.1736 of 2009 order: Petitioner/plaintiff filed this revision assailing the correctness of the order dated 27-02-2009 dismissing the I.A.No.287 of 2009 in O.S.No.429 of 2002 filed under Order XXXII Rule 5 and Order VI Rule 17 and Section 151 CPC seeking to appoint petitioner/plaintiff’s son, namely, Yedlapali Nageswara Rao as guardian during the period of insanity and mental ill health of the petitioner. Admittedly, the suits—O.S.Nos.582 of 2002 and 1065 of 2003 are clubbed with O.S.No.429 of 2002 to record common evidence. Advocate Commissioner was appointed at the request of the plaintiff in O.S.No.429 of 2002 to record cross-examination through Advocate Commissioner, who recorded the cross-examination of P.W.1 in part and filed his report as incomplete. Thereafter, the defendants 3 and 4 filed I.A.No.252 of 2009 to direct P.W.1 to appear before the Advocate Commissioner or before the Court for further cross-examination. At that stage the petitioner/plaintiff filed the present I.A. stating that since he is aged 85 years, suffering from Senile Dementia and loss of memory by enclosing a certificate issued by the doctor that the petitioner/plaintiff (P.W.1) is not in a position to appear before the Advocate Commissioner for competition of further cross-examination. The said I.A. was dismissed by the lower court holding at that stage the Court cannot come to the conclusion that P.W.1’s evidence is acceptable or not and it cannot be eschewed. Due to non-appearance of P.W.1 for completion of further cross-examination, an adverse inference can be drawn and defendants’ counsel is at liberty to argue with regard to admissibility of P.W.1 deposition and the evidence of P.W.1 is closed. Questioning the same the present revision is filed. In spite of service of notice to the counsel for the 1st respondent in the lower court, the 1st respondent has not put up his appearance. Heard the learned counsel for the petitioner and also learned counsel for the 2nd respondent. The Supreme Court in KASTURIBAI v. ANGURI CHAUDHARY[1] held that on a bear perusal of Order XXXII Rule 15 CPC it is evident that the Court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by the Court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. When the trial Court refused to appoint a guardian, the High Court, in our opinion, while setting aside the said order could only issue a direction directing the learned trial Judge to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent therein was incapable of protecting her interest by reason of any mental infirmity or not. As no such inquiry was held, there cannot be any doubt whatsoever that the learned Single Judge committed a jurisdictional error in passing the impugned judgment which, the Division Bench as noticed upheld. Holding so set aside the impugned judgments and remitted the matter to the trial Court for consideration of the matter afresh strictly in terms of Order XXXII Rule 15 CPC. In view of the same, the impugned order passed by the lower Court amounts to refusing to exercise the jurisdiction vested in it in conducting an inquiry about the insanity of the petitioner. Therefore, the same is accordingly set aside and the matter is remitted to the Court below with a direction to conduct an inquiry about the insanity of the petitioner and pass appropriate order. The revision petition is accordingly allowed. No costs. _________________ A.GOPAL REDDY, J. 22-10-2009 Murthy [1] (2003) 3 SCC 225