The Court must assess the incapability of a litigant to protect their interest due to unsound mind or mental infirmity, and medical evidence may be considered.

RAVINDRA V. GHUGE, J.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. Issue raised in this petition is as regards the scope of the powers and the jurisdiction of the Court in directing the appointment of a "next friend" under Order XXXII Rule 15(3).

3. The petitioner is aggrieved by the order dated 13.06.2016 passed by the Trial Court, suo-motu, directing the petitioner to comply with Order 32 Rule 15(3) of the CPC and appoint a proper person as a “next friend’ as the Trial Court feels that the petitioner is of an unsound mind.

4. By order dated 05.07.2016, this Court has granted interim relief to the petitioner in terms of prayer clause “D” thereby staying HMP No. 183/2014.

5. I have considered the submissions of the learned Advocates for the respective sides.

6. Order XXXII Rule 15 reads as under:

“15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind 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, of protecting their interest when suing or being sued.”

7. It is, therefore, obvious that either a litigant has to be adjudged as being mentally challenged and incapable of conducting the matter or the Court must find on enquiry that such person would be incapable of protecting his/her interest in the matter.

8. The Hon’ble Supreme Court in the matter of Kasturi Bai and Others vs. Anguri Chaudhary, 2003 AIR (SC) 1773 has observed in paragraph Nos. 10, 11 and 12 as under:

“10. On a bare perusal of the said provision, 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 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. The respondent did not contend that appellant No. 1 herein is of unsound mind. As noticed hereinbefore, the respondent herself had filed an application before the trial court for holding an inquiry to the effect that she suffers from mental infirmity.

11. The learned trial court refused to do the same and in that view of the matter 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 herein 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 hereinbefore upheld.

12. For the reasons aforementioned, the impugned judgments are set aside and the matter is directed to be remitted to the learned trial Judge for consideration of the matter afresh strictly in terms of Order 32 Rule 15 of the Code of Civil Procedure as also in the light of the observations made hereinbefore.”

9. In the Kasturi Bai case (supra), the Trial Court had not conducted an enquiry so as to assess as to whether the litigant was incapable of conducting the proceedings. It, therefore, means that the Court has to assess not the capability of a litigant, but has to conclude that the said litigant is incapable of protecting his/her interest, owing to being of an unsound mind or suffering from mental infirmity which would render the litigant incapable. As like in this case, merely because the petitioner is taking some treatment and counseling, would not ipsofacto mean that she is of an unsound mind or suffers from a mental infirmity. Even if she may be undergoing some treatment, the Court has to conclude t