The court must conduct a preliminary inquiry before appointing a guardian for a person of unsound mind, as mandated by Order XXXII Rule 15 CPC.

JUDGMENT :

K. BABU, J.

The challenge in this Original Petition is to Ext.P8 order, whereby the Court appointed a person proposed by the plaintiff as the guardian of defendant No.1 on the ground that he is of unsound mind and unable to protect his interest.

2. The plaintiffs instituted O.S No.275/2018 before the Munsiff's Court, Pala, against defendant Nos.1 to 4, in which defendant No.1 was being sued pleading that he is of unsound mind. In the plaint, defendant No.1 is described as represented by his guardian, who is the husband of his cousin sister. Plaintiff No.1 filed an affidavit, stating that defendant No.1 is a person of unsound mind, along with the petition to appoint the proposed person as his guardian. The learned Munsiff allowed the order. The impugned order reads thus:

“Proposed guardian filed affidavit. Heard. He is appointed as guardian of D1.”

3. Admittedly, no preliminary enquiry was conducted before appointing a guardian to defendant No.1 on the premises that he was of unsound mind. The mandate of Order XXXII Rule 15 is that the Court, before whom a person stated to be suffering from mental infirmity, or a person who is seemingly unable to protect his interest when suing or being sued appears, is bound to conduct a preliminary enquiry before proceeding with the suit as to whether the person is capable of protecting his interests without the assistance of a next friend. This requirement is necessary because the decision of the Court is prima facie on the competence of the litigant in prosecuting the case. The precedents on the point are numerous.

4. In Syed Hassan v. Chirutha (1987 KHC 426), the Single Bench of this Court held that it is a pre-requisite of a suit sought to be filed by the next friend that the court should of its own motion conduct an enquiry in accordance with the provisions of Order XXXII Rule 15 of CPC before accepting the plaint filed in the name of the infirm person.

5. In Raveendran v. Sobhana and Another [ 2008 (1) KHC 607 ] the Division Bench of this Court held that a person suffering from mental infirmity, or a person who is seemingly unable to protect his interest when suing or being sued, appears, the Court is bound to conduct a preliminary enquiry before proceeding with the suit as to whether the person is capable of protecting his interests without the assistance of a next friend.

6. Another Division Bench of this Court in Jimshith Lal v. Shabeena [ 2018 (4) KLT 814 ] following Raveendran held that the decision under Order XXXII Rule 15 of the Code involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend or guardian, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests.

7. In Vinesh v. Raji Radhakrishnan ( 2024 KHC OnLine 936 ), another Division Bench of this Court following Rasheeda v. Nazeer and Others [ 2011 (3) KLT 218 ] held that the preliminary enquiry can never be dispensed with and will have to be necessarily conducted in the manner provided in Order XXXII Rule 15 CPC.

8. In the present case, the Trial Court committed patent illegality which is to be interfered with this Court invoking jurisdiction under Article 227 of the Constitution of India. Resultantly, Ext.P8 order stands set aside. The Trial Court is directed to consider Ext.P4 application afresh and proceed further in accordance with law.

The Original Petition (Civil) stands allowed as above.