V. P. MOHAN KUMAR, J.

( 1 ) A suit instituted by a person described as one who is mentally incapable to look after his interest, through his next friend, is still at the threshold of commencement of the proceedings. The plaintiff brought the suit through his next friend describing himself to be mentally infirm and unsound. It is seen, that initially no application was made by the next friend to be permitted to represent the plaintiff as such and no enquiry was conducted by the Court in this behalf earlier. The defendant appeared and contested the capacity of the next friend to bring the suit as according to him, the plaintiff is neither infirm nor lunatic nor of unsound mind. On his context Issue No. 1 was framed as under: "whether the plaintiff is mentally infirm and of unsound mind?"

( 2 ) THEREAFTER the plaintiff filed I. A. X to treat the above said issue as a preliminary issue.

( 3 ) IN that proceedings the plaintiff got a commissioner appointed-a qualified Doctor attached to N1mhans Hospital-to examine the plaintiff, and his evidence was recorded as p. W. 1. It is found therein that the plaintiff was mentally incapable to maintain the suit, and that the suit be brought by the next friend. It hence held Issue No. 1 referred to above be treated as a preliminary issue. By order dated 24th February. 1993. the said I. A. was allowed. In doing so, the Court had conducted a detailed examination to ascertain the capability of the plaintiff to bring the suit independently, the contention whether it should have initially undertaken an enquiry in this behalf, what is the effect of not making an application under order 32, Rule 15 of the CPC. whether the plaint should have been returned for that reason etc. These objections of the defendants were overruled and Issue No. 1 was treated as a preliminary issue. The said order was challenged in revision before this Court in CRP no. 2577 of 1993. By order dated 15th September, 1993 that CRP was dismissed confirming the order declaring Issue No. 1 to be the preliminary issue. Thereafter, the preliminary issue was considered by the impugned order the said preliminary issue was tried and answered in favour of the plaintiff. The said finding on the issue is challenged in this CRP.

( 4 ) I have heard Mr. S. P. Shankar. learned counsel for the petitioner at length. He elucidated the scope and ambit of enquiry under order 32, Rule 15 of the CPC and contended that the Court has committed an infallible error in not having initially conducted an enquiry at the threshold when the plaint was presented which in fact would be the procedure to be adopted by the Court, being the combined effect of the operation of Order 7 Rule l (d) read with Order 32, Rule 15 of the CPC. In this behalf he invited my attention to various authorities, namely :1. Somnath v Tipanna Ramchandra Jannu; 2. B. K. Khanna v K. N. Khanna and Others- 3. Mohammed Ibrahim Ummal v Sheik Mohammed Marakayar 4. Duvvuri Rami Reddi v Duvvudu Papi Reddi and Others. 5. Joti Sarup and Others v Kamle Singh and Others; 6. Prosanna Ram Ghosh and Others v Anfar Ali and Others: 7. Baiju Lal Pathak v Smt. Maina Dai and Others; 8. Duvvuri Papi Reddi and Others v Duuuuri Rami Reddi; 9. Balakrishnan v Kalliyani; 10. Syed Hassan Baffakki Thangal and Others v. Kalliath Thazha Chirutha and Others; 11. Jhabarmal Panda v Bhagawati prasad Kedia;there are other decisions rendered, by other high Courts as well. But the above will suffice to indicate the view taken by the cross section of High Courts. Mr. Shankar, who has done his home work extremely well, did persuade me to declare the procedure to be adopted by the Courts in such contingencies. In the view, i am taking in this case, 1 feel, at this juncture, it is quite unnecessary for this Court to dwell on this aspect except briefly indicate the procedure that may be followed. According to me, the answer to the riddle can be found from order 7, Rule 1; Order 7. Rule 11; Order 32, rule 2 and Order 32. Rule 15

Click Here to Read the rest of this document