IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 8361 OF 2009 Shri Venkatesh Chandrayya Kondle, through his wife Sou. Sangeeta Venkatesh Kondle. .. Petitioner Versus Mrs. Sarojinibai Ambadas Madur & Ors. .. Respondents -- Shri S.S. Shah for the Petitioner. Shri Pankaj J. Das for Respondent Nos.1, 2, 3A to 3F. -- CORAM : A.S. OKA, J DATED ; 3RD FEBRUARY, 2010. P.C. Submissions of the learned counsel appearing for the parties were heard on the earlier date. Considering the narrow controversy involved, the Writ Petition is taken up for final disposal at the admission stage. 2. The challenge in this Writ Petition under Article 227 of the Constitution of India is to an order dated 13th August, 2009. The said order has been passed by the trial Court on an application made by the Advocate for the 1st Defendant. The application was made at Exhibit – 127 by the Advocate for the 1st Defendant contending that the 1st Defendant is of unsound mind and is suffering from mental imbalance. A reliance was placed on the certificates produced along with the said application. The trial Court rejected the said application on various grounds. 3. The present Petition is filed on behalf of the 1st Defendant. The Petition has been affirmed by his wife. The main contention raised in the Petition is that when it was brought to the notice of the trial Court that the 1st Defendant is of unsound mind, it was the duty of the Court to hold an inquiry on this aspect as required by the provisions of law. 4. The learned counsel appearing for the Petitioner pointed out that in fact, the original Plaintiff had made an application for appointing the wife of the 1st Defendant as a guardian and the said application was not pressed. He, therefore, submitted that the trial Court could not have summarily rejected the application at Exhibit – 127. The Petition is opposed by the learned counsel appearing for the Respondent Nos.1, 2, 3A to 3F. The opposition is on the ground that the application has been belatedly filed and there is no material to show that the 1st Defendant is of unsound mind. The learned counsel pointed out that earlier application made was not pressed as the said application was made on the ground that a contention was raised by the 1st Defendant that he was of unsound mind. He submitted that the concerned Respondents never admitted that the 1st Defendant was of unsound mind and, therefore, no interference is called for in the impugned order. 5. I have carefully considered the submissions. It will be necessary to consider the provisions of Order XXXII of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ) which deal with the suits by or against minors and persons of unsound mind. Rule 15 of Order XXXII of the said Code provides that Rules 1 to 14 ( Except Rule 2-A ) shall apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind. Rule 15 of Order XXII of the said Code reads thus:- “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 inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.” 6. Reading the aforesaid Rule 15 with Rule 3 of Order XXXII of the said Code, it is obvious that when a Defendant is found to be incapable, by reason of any mental infirmity, of protecting his interests, it is the duty of the Court to appoint a proper person to be guardian of such a person. Thus, a duty to cast upon the Court to appoint a proper person to be a guardian of such Defendant for the purposes of suit. In the earlier application at Exhibit- 120 made by the Plaintiff, a prayer for appointment of the guardian of the 1st Defendant was made by contending that it is alleged that the 1st Defendant is of unsound mind. On the said application, an endorsement was made by the Advocate for the Plaintiff that the Plaintiff will make a separate application for appointment of the guardian of the 1st Defendant as he is of unsound mind. Thus, at that stage, even the Plaintiff contemplated of making an application under Rule 3 read with Rule 15 of Order XXXII of the said Code. The learned trial Judge while rejecting the application observed that the medical certificate produced was of April, 2003. It is stated that a purshis was filed by the Advocate representing the 1st Defendant informing that since the 1st Defendant was insane, he was withdrawing his power. Therefore, the Court came to the conclusion that the said application made was an attempt to protract the matter. 7. Even the original Plaintiff at one stage applied for appointing the wife of the 1st Defendant as his guardian. The said application was not pressed on the ground that for the same relief, a fresh application is being made. There is a certificate placed on record which noted that the 1st Defendant was suffering from Chronic Schizophrenia. 8. As pointed out earlier, if the Defendant is incapable, by reason of any mental infirmity, of protecting his interests, it is the duty of the Court to appoint a proper person as his guardian. Therefore, in the facts of the case, it was the duty of the Court to hold an inquiry as contemplated under Rule 15 of Order XXXII of the said Code and to decide whether the 1st Defendant was incapable, by reason of any mental infirmity, of protecting his interests. Without considering the provisions of Order XXXII of the said Code, a hyper- technical approach has been adopted by the learned trial Judge. The Advocate appearing for the 1st Defendant may have filed the purshis expressing his inability to appear for the 1st Defendant but the said Advocate performed his duty by pointing out that the 1st Defendant was of unsound mind as is indicated by the medical certificate produced along with the application. Without holding proper inquiry, the said application ought not to have been rejected. Hence, the impugned order must be set aside by passing following order. (a) The impugned order dated 13th August, 2009 is quashed and set aside. (b) The trial Court will proceed to hold an inquiry in terms of Rule 15 of Order XXXII of the said Code and will ascertain whether the 1st Defendant is incapable, by a reason of any mental infirmity, of protecting his interests. (c) All contentions of the parties on this question are expressly kept open. (d) The suit is of the year 1999 and, therefore, the inquiry shall be concluded expeditiously. (e) The Petition is partly allowed in above terms. JUDGE ash/