The importance of a proper judicial enquiry and expert assistance in determining the mental capacity of individuals with mental impairments.

K.A. Mohammed Shafi, J.

O.S. No. 45/95 was filed before the Munsiff s Court, Nadapuram by the revision petitioner, as the next friend of one Pulikkal Thomas, to whom the plaint schedule property belongs, for a permanent prohibitory injunction restraining the defendant from alienating the plaint schedule property and cutting and removing valuable trees from the property. It is alleged that Sri, Pulikkal Thomas is deaf and dumb and incapable of looking after his affairs. During the pendency of the suit LA. No. 583/96 was filed by Thomas aforesaid for removal of the next friend. The lower Court, after conducting enquiry by order dated. 26.6.1996 allowed the petition and removed the next friend. That order is challenged by the next friend in this revision petition.

2. The revision petitioner has contended that Pulikkal Thomas is deaf and dumb and mentally retarded person incapable of looking after his affairs. A Medical certificate issued by doctor Ali who was treating him, to that effect was produced before the lower court at the time of filing the suit, by the petitioner as his next friend. According to him, the lower court without conducting a proper enquiry as provided under 0.32 R.15 CPC held that Sri. Thomas is only deaf and dumb and is capable of looking after his affairs. The respondent vehemently contended that the lower court has conducted a proper enquiry as provided under 0.32 R.15 CPC and satisfied that Sri. Thomas was capable of looking after his affairs, by questioning him in open court and that fact is evident from the impugned order itself. In the impugned order, it is stated that the enquiry was conducted in open court and to all questions put by the Court Sri. Thomas had given proper, correct and intelligent answers through gestures and signs and the lower court allowed the petition finding that Thomas is only a deaf and dumb person and not an individual incapable of looking after his affairs.

3. 0.32 R.15 CPC reads as follows :

"15. Rd to 14 (except R.2a ) to apply to persons of unsound mind-Rr.1 to!4(except R.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."

The scope of enquiry contemplated under 0.32 R.15 CPC is satisfaction of the court as to whether the person is incapable of looking after his affairs due to mental infirmity or not.

4. It is well settled that when a plaint is presented before the court by next friend, before entertaining the same the court has to prima facie satisfy that the plaintiff, due to mental infirmity, is incapable of protecting his interest. If it is contended in the suit by the opposite party that the plaintiff is not aperson suffering from any mental infirmity and is not incapable of looking after his own affairs, the court has to conduct an enquiry in that regard and has even to frame an issue regarding that aspect. In this case, from the impugned order, it is not clear as to whether any such enquiry was conducted by the Court and framed any issue in that behalf. The Court conducted an enquiry in the above petition filed by Sri. Thomas, to remove his next friend and found he is capable of looking after his affairs.

5. As already noted the scope of enquiry by the court is only for the satisfaction of the court as to whether the alleged idiot or mentally retarded person is capable of looking after his affairs. Hence, the question to be considered in this case is whether the enquiry conducted by the court below is proper and sufficient as contemplated under 0.32 R.15 CPC. It would appear from the impugned order that the lower court put

several questions to the alleged idiot or mentally retarded person in open court and he answered all those questions properly by gestures and signs being a deaf and dumb per