Court should have ordered for medical examination of plaintiff.

This revision is directed against the order of the II Additional Subordinate Judge, Trichy, dated 8. 1996 in I.A. No.157 of 1996 in O.S. No.216 of 1983.

.2. The short facts of the case are as follows: One AL.Shanmugam filed O.S. No.216 of 1983 praying for partition of the suit property into two equal shares and allotment of one share to the plaintiff. The trial of the suit commenced and the said Shanmugam was examined as the plaintiff’s witness. The chief examination was over and the petitioner’s counsel cross-examined the plaintiff. Several answers were also elicited from the witness. According to the petitioner, the witness was giving answers correctly to the questions put to him, but he took time for answering the questions. The court also put questions to the witness which the witness answered. Some of the answers for the questions put in the cross examination were not in favour of the plaintiff’s case. At that time the plaintiff’s counsel stated that the witness is not answering the questions properly. The petitioner/ defendant’s counsel also agreed that the witness is taking too much of time to answer each question. The learned trial Judge immediately made an endorsement and in the counsel agreed to dispense with the examination of P.W.1, somebody on his behalf, may be examined. The case was adjourned to some other date. Taking advantage of the situation, the said Shanmugam set up his wife S.Saraswathi and filed an application in I.A. No.157 of 1996 under O.32, Rule 15, C.RC. praying for appointment of a guardian to the said Shanmugam on the ground that the said Shanmugam is mentally not alright which happened during the pendency of the proceedings. The petitioner filed a counter for the above application and contended that the said application is not maintainable and the allegation that the said Shanmugam is mentally unsound is false. The learned trial judge however allowed the application filed by Mrs.S. Saraswathi and by order dated 8. 1996 appointed her as the guardian of said AL.Shanmugam. Aggrieved by the same, the petitioner/defendant has preferred the above revision.

3. I have heard the arguments of Mr.K.S.Natarajan for the petitioner and Mr.K.Kannan for the respondent and also pursued the entire pleadings and the order impugned in this revision.

.4. It is contended by Mr.K.S.Natarajan that I.A. No. 157 of 1996 filed by the respondent is not maintainable in law. According to him, an application under O.32, Rule 15, C.RC. has to be filed only by the plaintiff when the suit was presented by him or by the defendant after receiving of summons. Admittedly, Shanmugam has been conducting the above case since 1983. He has sworn to several affidavits. He has been instructing his counsel for conducting the case and finally he has also chosen to examine himself as a witness and the chief-examination and part of the cross examination were over. At that time, it was found that the evidence given by him was not in his favour and he worked out a deliberate devise to get over his own evidence by filing the application for appointment of a guardian. According to the learned counsel for the petitioner, the lower court has failed to appreciate that merely because the said Shanmugam took more time for answering each question the same cannot amount to mental infirmity and that there is absolutely no averments even in the affidavit filed by the respondent herein (S.Saraswathi) to arrive at a conclusion that the said Shanmugam is of unsound mind or that he is suffering from mental infirmity. It is also further stated that the counsel for the petitioner never conceded that Shanmugam is of unsound mind and what was represented before the lower court was that by delaying tactics the said Shanmugam is not answering the questions properly. Therefore, it is contended by the learned counsel for the petitioner that the lower court ought to have at least referred the said Shanmugam for medical opinion with respect to hesitate of mi