S.A.O No.6 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. S.A.O No.6 of 2009 Date of Decision: 17.11.2009 Raj Kumar and another ....Appellants Versus Phool Singh and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. V.B. Aggarwal, Advocate for the appellants. Mr. Pritam Saini, Advocate for respondents No.1 to 3. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The facts in short are that the respondents, in the present appeal, filed a suit for possession by way of specific performance of agreement to sell dated 10-12-1996 for land measuring 4 kanal 5 marlas against the defendant including appellant/defendant Nos.2 and 3. The said suit was decreed ex parte against the appellant/defendant No.2 and 3 on 09.08.2002. Thereafter, Raj Kumar and Tarsem Singh, appellants sons of Radhey Sham filed an application for setting aside the ex-parte judgment and decree dated 09-08-2002. The appellant/defendants No.2 and 3 averred that they are deaf and dumb and living under the care and custody of their mother Shanti Devi. They are unable to defend their interest as S.A.O No.6 of 2009 2 they are deaf and dumb since the time of their birth. It was further averred by the appellants that they were never served duly in the case titled as Phool Singh vs. Krishan Kumar and they being deaf and dumb were unable to understand their welfare and cannot look after their interest. The order dated 12.11.1998 proceeding ex parte against the appellants is liable to be set aside as they were not duly served through proper person/guardian at any point of time. Therefore, they were not aware of the proceedings of the case as they were unable to pursue the case themselves. It has been further averred that if the order dated 12-11-1998 and the judgment and decree dated 09-08-2002 are not set aside and applicants not heard on merits in the main case, they will suffer irreparable loss and injury and it will lead to multiplicity of the litigation. It has been further averred that appellant/defendants No.2 and 3 are deaf and dumb and refusal of summons and the report, if any, of refusal is against the fact and law. The next friend came to know from her son Krishan Kumar regarding order dated 12-11-1998 and judgment and decree dated 09-08-2002 and it was only thereafter the application to set aside the ex parte order was moved. The said petition for setting aside the ex-parte judgment and decree was dismissed vide order dated 07-04-2008 passed by Civil Judge (Jr. Divn.), Kurukshetra, by recording that appellant/defendants No.2 and 3 were duly served in the proceedings and it is not proved that they are unable to watch their interest and as such, no ground is made out to set- aside the ex parte order dated 12.11.1998 and ex parte judgment and decree dated 09.08.2002. Aggrieved with the same, an appeal against the order dated 07-04-2008 passed by Civil Judge (Jr. Divn.), Kurukshetra, was filed. The same was dismissed vide order dated 29-11-2008 passed by Additional District Judge, Kurukshetra. S.A.O No.6 of 2009 3 While challenging the above impugned order, learned counsel for the appellants submitted that it is fully proved on record that the appellants are deaf and dumb. Dr. Dharambir of P.G.I., Chandigarh, who appeared as AW2, who reported that both the appellants are hard of hearing, Raj Kumar got 80% hearing loss and Tarsem Singh has got 100% impairment in relation of his hearing. His reports are Ex.A-1 to Ex.A-9 but the lower Court has not discussed anything about these reports and the statement of Dharambir as examined by the appellants as AW2 has not been discussed and it is fully proved on the file that P.G.I is a premier institute and Dr. Dharambir is an expert person and board of doctors has reported that Raj Kumar has impairment of 80% loss of hearing and Tarsem Singh has 100% impairment in relation to his hearing. Secondly, the appellants, being deaf and dumb, as per the evidence produced by the parties, their case was squarely covered under Rule 15 of Order XXXII of CPC. Reliance was placed on the judgment of Division Bench of this Court, rendered in the case, titled as Asha Rani vs. Amrat Lal AIR 1977 Punjab and Haryana 28(1), as well as, the judgment of Lahore High Court, titled as Nanak Chand and others vs. Banarsi Das and others A.I.R. 1930 Lahore 425. Learned counsel for the respondents, however, invited the attention of this Court to para 18 of the Order dated 07-04-2008 vide which the application for setting aside the ex parte order was dismissed, wherein, it was held that the appellants are capable of watching their interest and they understand the communication made to them. It was further submitted that the appellants are very much aware of the presence of the suit and intentionally failed to appear in the Court and it was found that they are capable of understanding and it is nowhere recorded or there is no finding that they are insane or mentally unsound. Hence, their case is not covered under Rule 15, Order XXXII CPC. S.A.O No.6 of 2009 4 Learned counsel for the parties have been heard. The entire dispute revolves around the fact as to whether the case of the appellants, being deaf and dumb, is covered under Rule 15 of Order XXXII of CPC or not. Rule 15 of Order XXXII of CPC reads as under :- “Rules 1 to 14 (except rule 2A) 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 reason of any mental infirmity or protecting their interest when suing or being sued.” There is no dispute with the fact that the provisions of Rule 3 of Order XXXII of the Code are mandatory and the appointment of a guardian is not a mere formality. Any proceedings recorded or the decree passed against a minor or mentally unsound defendant without the appointment of a guardian by the Court in the light of the above-quoted provisions would be void because of the contravention of the mandatory provisions of law. The requirement is that the Court should hold an enquiry and reach a definite conclusion that the allegation is well founded. It is also evident that the enquiry need not be elaborate but is to be only of a preliminary nature. In the case in hand, while filing application to set aside the ex parte decree, a specific averment was made that they are deaf and dumb and they are unable to defend their interest on account of the same. In view of the same, following issue No.1 was framed :- “1. Whether ex-parte judgment and decree dated 09-08-2002 deserves to be set-aside for the reasons stated in the application? OPA.” In order to prove their case, defendants No.2 and 3 examined Shanti Devi as AW-1, Dr. Dharambir as AW-2 and tendered in evidence S.A.O No.6 of 2009 5 documents as Exh. A-1 to Exh. A-9. On the other hand, the respondents/plaintiffs examined Ram Saran as RW-1, Sunil Kumar as RW- 2, Dina Nath as RW-3, Ashwani Kumar as RW-4, Diwakar Kaushik as RW- 5, Phool Singh as RW-6 and tendered in evidence documents Exh.R-1 to Exh. R-10. On the basis of the entire evidence and material, the following conclusion was arrived at; “ It may be added that as per sale deed No.1101/1 dated 14-06-1993 Exh. R4, sale deed No.268/1 dated 19-04-1996 Exh. R5, the applicants executed the said sale deeds alienating the land. Again they filed an application under Section 4 of the Land Mortgage Redemption Act in the court of Collector, Thanesar as is clear from copy of order dated 22.12.1999 Exh. R-6. Again they have been challaned by the police and charge framed vide order dated 21-05-2003 as is clear from copy of charge sheet Exh. R1. In none of the said documents, it is pleaded that they are unable to watch their interest meaning thereby that they understand the communication made to them and it cannot be said that they are incapable to watch their interest simply on the grounds that they are deaf and dumb.” Learned counsel for the appellants, however, challenged the above finding on the ground that Dr. Dharambir, who had appeared as AW-2 and stated that Raj Kumar got 80% hearing loss and Tarsem Kumar has 100% impairment, should be interpreted to read that the appellants are not capable of looking after their interest. Accordingly, reference was made to the said statement of Dr. Dharambir, which is placed on record as P-6. Whereas a perusal of the said statement of Dr. Dharambir, shows that he did not state anywhere that Raj Kumar and Tarsem Kumar are incapable of watching their interest or they are mentally insane. The relevant extract of the statement is as under :- “ Raj Kumar got the 80% hearing loss (he S.A.O No.6 of 2009 6 is physically handicapped and has 80% hearing impairment in his relation to hearing loss). Tarsem Kumar has 100% impairment in relation of his hearing. It is correct that without draining of sign language, patient has no rational understanding. While doing the subjective test we made understand the patient what they have to do and they fairly followed my instructions. Seeing the condition of the patients, I did not feel to sent them to any psycharistic because there was no sign of their abnormal behaviour. It is correct that even a deaf and dumb person can do his usual things with prudent mind if he is firstly aware of the things. Thus, it is apparent that on the basis of the documents, evidence and the medical certificates, the appellants No.2 and 3 although found to be deaf and dumb, were not persons of unsound mind or having any mental infirmity. Thus, a definite conclusion was arrived at by the Court after recording due evidence in accordance with the law laid down in the judgment of Asha Rani's case (supra). After granting due opportunity to lead evidence, a finding has been duly recorded as above. Even as per the judgment rendered by the Division Bench of this Court, in the case, titled as Gurpreet Singh vs. Chaterbhuj Goel reported in 1991(2) RCR 504, Order 32 Rule 15 will be applicable to protection for minors and persons of unsound mind. Thus, being deaf and dumb in itself is not sufficient to reach a conclusion that the appellants are of unsound mind. Learned counsel for the appellants has further relied on the judgment of Lahore High Court, in the case Nanak Chand and others (supra). A perusal of the judgment shows that although Order 32 Rule 15 is intended to cover the case of deaf and dumb. In the present case, the appellants although deaf and dumb, are otherwise able to communicate with others as is apparent from the evidence of Doctor himself. There is no S.A.O No.6 of 2009 7 conclusion that they are not capable of understanding the sign language. In fact, the evidence when read positively shows that they are capable of understanding the sign language and not otherwise. The judgment rendered by the Hon'ble Supreme Court in the case titled as Ram Chandra Arya v. Man Singh and another AIR 1968 Supreme Court 954, is not applicable to the facts of the present case as the same pertains to a minor. Even otherwise, the real brother of the appellants Krishan Kumar contested the case and even Hari Krishan, who had moved an application under Order 32 at the initial stage, is the real brother of the appellants. The interest of the Krishan Kumar and the appellant is same. The concurrent findings are otherwise recorded on facts. Thus, it is found that appellants No.2 and 3 are duly served in the proceedings and it has not been proved that they are not able to watch their interest. Being deaf and dumb is itself not sufficient to declare them of unsound mind. The S.A.O. is, accordingly, dismissed. (NIRMALJIT KAUR) 17.11.2009 JUDGE gurpreet