The main legal point established is that the provisions of the Mental Healthcare Act, 2017 and Order 32, Rules 1 and 2 of the Code do not automatically bar a suit when the defendant is alleged to be mentally infirm.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 08.05.2019 passed by the Court of learned District Judge, Shimla, vide which an application filed by the present petitioner under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint, has been dismissed.

2. Brief facts necessary for the adjudication of the present petition are that respondents/plaintiffs have filed a suit for possession against the petitioner/defendant with respect to the portion of a shop, measuring about 5x7 feet, in shop No. 93, The Mall Shimla, built upon land comprised in Khasra No. 627, Bazaar Ward, Bada Shimla, as also for recovery of use and occupation charges. A decree for recovery of 1.00 Lac alongwith pendilite and future interest has also been prayed for.

3. Petitioner filed an application under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of plaint being barred by law inter alia on the ground that petitioner was mentally infirm and was undergoing treatment in the Department of Psychiatry, IGMC, Shimla, yet, plaintiffs sued him in his independent capacity, without instituting the suit through next friend of the petitioner/defendant. According to the petitioner, even the service in the suit was not properly effected upon him. Same was effected on some family member of the petitioner. Appearance was put through attorney of defendant by filing memo of appearance and thereafter, power of attorney was also filed through one Power of Attorney holder of the petitioner. Even before the filing of the suit, a notice was issued by the plaintiff on false and flimsy grounds to the petitioner which was replied by the attorney of the petitioner and the fact of mental infirmity of the petitioner was brought to the notice of the plaintiffs, yet, plaintiffs chose to file a suit against a mentally infirm person, which was barred in law. On these grounds, petitioner prayed that plaint be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure.

4. Plaintiffs contested the said application. They mentioned in the reply that they had filed an eviction petition against one Gopal Dass Verma before learned Rent Controller(1), Shimla. Gopal Dass surrendered his tenancy rights. Therefore, the status of the defendant became that of an unauthorized occupant and in the said petition, Kishori Lal, i.e. present petitioner, had himself signed reply as also the affidavit in support of the same. In the Civil Suit he had been repeatedly seeking adjournments to file written statement after service and after the statutory period of 90 days to file written statement was over, application under Order 7, Rule 11(d) of the Code was filed by him. It was further mentioned in the reply that the averments made in the application were self contradictory, because in law, a mentally infirm person could not execute a General Power of Attorney. It was denied that defendant was mentally infirm and as per the plaintiffs, the filing of the application was abuse of process of law. According to them, at the most, an application could have been filed under Order 32, Rule 15 of the Civil Procedure Code, for appointing a guardian but the plaint could not be rejected.

5. Vide impugned order, learned Court below has dismissed the application by holding that plaintiffs were not having any knowledge at the time of filing of the suit that the defendant was not able to defend the suit due to his mental incapacity and after coming to know of his mental incapacity, plaintiffs had already moved an application under Order 32, Rule 15 of the Code, which was pending adjudication and for which purpose, report of the Doctor had already been called to judge the mental status of the defendant, hence, there was no merit in the application.

6. Mr. G.C. Gupta, learned Senior Counsel appearing for the petitioner has argued that the impugned order is not sustainable in the eyes of law as le