In a suit filed by a next friend on behalf of a person of unsound mind, the court must hold an ex parte inquiry to determine the plaintiff's unsoundness of mind before admitting the plaint. This inquiry is not binding on the defendant, who may challenge it by proving that the plaintiff is capable of protecting their own interests.

JUDGMENT - Deshmukh, J.

1. This is plaintiffs appeal. Plaintiff is described in the plaint as a major person aged 35 but of unsound mind, or a person incapable of taking care of his own affairs and, therefore, sued through the next friend, his wife. For the purpose of this appeal, it is not necessary to refer to the contents of the plaint. Suffice it to note that there appears to be a decree ultimately passed by the High Court in First Appeal No. 479 of 1961 decided on 25-7-69 arising out of Special Suit No. 108 of 1958 in the Court of the Civil Judge (s. D.) Poona, in favour of the defendant. Defendant is executing that decree in Special Darkhast No. 90 of 1968 and the suit by the next friend on behalf of the plaintiff, who is described as a person of unsound mind is for a declaration that the plaintiff has a right to remain in possession of the suit property and that that defendant is not entitled to execute the decree for specific performance obtained by him in the litigation mentioned above.

2. While opposing the suit on the merits, the defendant in his written statement also alleged that it was not true that the plaintiff was a person incapable of taking care of his own affairs. He, therefore, challenged the presentation of the plaint as improper. He also filed an independent application, Exh. 29, containing the same allegation, viz., that the plaint was not properly presented and it should be struck off the file.

3. The learned Civil Judge (S. D.) Poona, framed two preliminary issues and disposed of the suit on those issues. The first issues was whether the plaint has been properly presented by the plaintiff and the second was, what order.

4. The learned Civil Judge referred to the provisions of Order 32, Rule 15 of the C. P. Code and also some case law dealing with the same provisions. He relied upon some observations in the judgment of the Madras High Court in the case of Govindayya v. Ramamurthi, AIR 1941 Mad 524. According to the learned Judges view, the next friend of the plaintiff should have first applied and obtained finding of the court under the provisions of Order 32, Rule 15 that the plaintiff was in fact a person of unsound mind and that the next friend should sue. Since that procedure is not followed, the plaint is not properly presented and the suit is liable to be dismissed. Accordingly, he dismissed the suit with costs for want of proper presentation of the plaint. Being aggrieved by this order, the plaintiff has filed this appeal.

5. It has been argued before us that the entire procedure followed by the learned trail Judge was erroneous and in spite of the application of the plaintiffs next friend to hold an inquiry about the unsoundness of mind of the plaintiff and the granting of his application in that behalf, the learned Judge suddenly turned round and heard the matter on preliminary issue with regard to the presentation of the plaint. Some cases also have been cited before us, more particularly from Madras and Andhra Pradesh High Courts. Apart from the case law, we propose to examine the question of the procedure to be followed for admitting the plaint when a major person is described as a person of unsound mind and the next friend wants to prosecute the suit for and on his behalf.

6. Before we do that, we may briefly note what the learned Judge has done. When the plaint was presented, which contains in the body of it in para 10, a statement that the plaintiff is unable to take care of his own property it has been straightway admitted and summons has been issued to the defendant. The defendant filed his written statement in which he disputed the right of the next friend to present the suit as the unsoundness of mind of the plaintiff was disputed. He also filed a separate application to hold an inquiry in that behalf and to reject the plaint as not properly presented. In the meanwhile, plaintiff has presented on 5-1-1972 the documents along with the list, Ex. 17, which contained amongst other things a ce

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