Back
2018 Supreme(Bom) 652
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHALINI PHANSALKAR-JOSHI, J.
Gulshan Rohington Irani – Petitioner
Versus
Rayomand Rohinton Irani & Others – Respondents
Writ Petition No. 3366 of 2018
Decided On : 05-04-2018
For the Petitioner:Sharan Jagtiani a/w Astad Randeria i/by Mahendra C. Moholkar, Advocates
For the Respondents:Cyrus Ardeshir a/w Ashish Kamath a/w Javeed Hussein, Reshma Khatri, Mubashir Hussein i/by Hussein & Co., Arosh Bharucha a/w Jehangir Jejeebhoy a/w Maneck Mulla a/w Danesh Mehta a/w Siddha Panecha a/w Khushbhu Malvia I/by M. Mulla Associates, Advocates
Headnote:
Constitution of India,1950 - Article 227 - Civil Procedure Code,1908 - Section 151 - Order XXXII - Rule 15 - Indian Lunacy Act - Section 41 - Quash - Enquiry - Court has accordingly called present petitioner in Court for examining her- Then with consent learned counsel for parties trial court called her alone in Chamber and thereafter he interviewed and questioned petitioner for minutes in recess and formed opinion that she is required to be called for one or two occasion again for purpose of inquiry and for further questioning her- However without commenting then about her ability and capacity to defend herself in suit trial Court was of view that further enquiry has to be conducted Order Code of Civil Procedure and for that purpose petitioner is required to be examined by medical experts Court has in paragraph its order stated that “for purpose of enquiry and for purpose of satisfaction of Court about fact as to whether petitioner is really capable of protecting her interest and defend herself in suit Dean Hospital Bombay can be directed to constitute such Board/Committee of experts for purpose of examination of defendant respect of her mental status for and for filing report or opinion of Committee/Board of Experts –Held, Case if for purpose of enquiry trial Judge has thought it fit that medical examination will assist him for arriving at satisfaction of Court about fact as to whether petitioner is really capable of protecting her interest and defend herself in suit- Hence it has to be that opinion formed by trial Judge needs to be given primacy due to it and this Court should not interfere in discretion exercised by trial Court which is based on legal principles recorded above and which is also found to be appropriate in particular facts of present case- Ultimately medical examination will be helpful for both parties to prove their respective claims in trial Court- It will be also in real and interest of petitioner herself who can defend herself if found to be mentally sound and if not she can also get assistance of someone to defend her interest medical examination has also become necessary particularly in of present case same advocate is representing her and defendant Hence interest of justice will always serve if things become clear on receipt of opinion of medical expert about mental ability of petitioner- Therefore from this angle also no case is made out for interference in impugned order passed by trial Court enquiry or medical examination is motivated or with an ulterior purpose to help other parties in other proceedings that cannot be and need not be enquired into at this stage- At this stage what is essential is to ascertain whether trial Court has rightly considered that for purpose of further enquiry her medical examination is necessary and it being one of recognized mode which is approved by Apex Court no interference on any count is warranted in impugned order passed by trial Court - Petition dismissed
1. Heard learned counsel for the petitioner and learned counsel for the respondents.
2. Rule.
3. Rule is made returnable forthwith with the consent of learned counsel for both the parties and the petition is taken up for final hearing.
4. By this petition filed under Article 227 of the Constitution of India, the petitioner is taking an exception to the order dated 13.2.2018 passed by Judge, City Civil Court, Greater Mumbai, in Notice of Motion No.532 of 2018 in Suit No.71 of 2018.
5. Present petitioner is defendant No.3 before the trial Court. The above said Notice of Motion was taken up by the respondent No.1-plaintiff requesting the trial Court to interview the petitioner, in the Judge's Chamber to examine her mental stability. It was also prayed that the petitioner be referred to Mental Health Review Board, constituted under the Mental Healthcare Act, 2017, with necessary direction to submit report to the Court.
6. The trial Court has, accordingly called the present petitioner, in the Court, for examining her. Then, with the consent learned counsel for the parties, the trial court called her alone in the Chamber and thereafter, he interviewed and questioned the petitioner for about 30 to 40 minutes in the recess, and formed opinion that she is required to be called for one or two occasion, again for the purpose of inquiry and for further questioning her. However, without commenting then about her ability and capacity to defend herself in the suit, trial Court was of the view that further enquiry has to be conducted under Order XXXII Rule 15 of the Code of Civil Procedure, and for that purpose the petitioner is required to be examined by the medical experts.
7. Accordingly, the trial Court has in paragraph No.3 of it's order stated that, “for the purpose of enquiry under Order XXXII Rule 15 C.P.C. and for the purpose of satisfaction of the Court about the fact as to whether petitioner is really capable of protecting her interest and defend herself in the suit, the Dean of Sir J.J. Hospital, Byculla, Bombay can be directed to constitute such Board/Committee of experts for the purpose of examination of defendant No.3, in respect of her mental status for and for filing report or opinion of the Committee/Board of Experts”.
8. In view thereof, the learned trial Court Judge was pleased to pass order to the effect that the enquiry under Order XXXII Rule 15 of the C.P.C. is already initiated. The Dean of Sir J.J. Hospital, Byculla, Bombay is directed to form a temporary Board or Committee of experts for the purpose of examination the petitioner-defendant No.3 of her mental status or stability.
9. The said Committee was also directed to file report accordingly about her mental status and stability, which will be helpful to the trial Court for the purpose of inquiry under Order XXXII Rule 15 of C.P.C. Accordingly, defendant No.1 was directed to take the petitioner or the petitioner herself shall submit for the purpose of such examination before the Board/Committee of experts so constituted on the date or dates given by the Head of the Board or Committee of the Experts so formed. Further consequential directions are also given by the learned trial Court Judge.
10. While challenging this order of the trial Court, the submission of learned counsel for the petitioner is that the learned trial Court Judge has not even formed prima facie opinion that the petitioner is not mentally stable or not mentally able to defend herself and without forming such prima facie view or opinion, conversely observing that she is required to be called for one or two occasion again for the purpose of inquiry and for further questioning, directed the petitioner to submit herself for medical examination to be conducted by the Board or Committee of experts. According to learned counsel for the petitioner, even in the Notice of Motion, there is no specific prayer that this enquiry was essential or it was sought for the purpose of the appointment of any person as
