Necessity of a judicial enquiry.

The first defendant is the petitioner. The relevant facts necessary for purposes of this case may be summarised as follows. The first defendant filed I.A. No. 374 of 1962 in the Court of the Subordinate Judge, Tirunelveli, under Order 3, rule 1, Order 32, rule 15, Order 26, rule 1, and section 151, Civil Procedure Code’ for the examination of the first plaintiff by a medical expert to ascertain his mental condition and to find out whether he is capable of managing his affairs. Apparently this application was taken by the first defendant with the object of appointing a next friend or guardian to the first plaintiff under Order 32, rule 15, Civil Procedure Code. This application was opposed by the first plaintiff and his brother the second plaintiff. In the counter filed, the first plaintiff avers that “the plea that he should be represented by a next friend is a malicious one and that it is not bona fide”. He has also produced their family doctor’s certificate to show that the allegations of the first defendant are false. In the main, the first plaintiff’s contention is that there is no mental infirmity in him and that he is capable of managing his affairs or that of the joint family consisting of himself and his two sons. He would add that no next friend is necessary. Thereafter the first plaintiff’s sons applied for impleading them-selves as parties to the suit. During the pendency of this application, one of the first plaintff’s sons Subramaniam whom I shall refer to by name hereafter, filed I.A. No. 149 of 1965 under Order 32, rule 15 to be appointed as next friend of his father. Subramaniam reiterates that though his father, the first plaintiff, requires no guardian under Order 32, rule 15, he is applying for the same without prejudice and in order to obviate delay and in view of the attitude of the first defendant. This application I.A. No. 149 of 1965 was opposed by the first defendant on two grounds; firstly, that unless there is a candid admission that the first plaintiff is by reason of” the mental infirmity, incapable of managing his affairs and second unless there is a finding to that effect, on a judicial enquiry and investigation made by Court, and as envisaged under Order 32, rule 15, the application is incompetent.

One thing emerges from the above background as to facts of the case. The first plaintiff (the father) Would swear that he is mentally alert and that the application for his examination by an expert is malicious and misconceived. He is prepared to conduct the litigation on his own though he is deaf and dumb and is of the opinion that anyone who is not intimately acquainted with him can reach his mind and interpret it. But his son Subramaniam would hesitantly say that without prejudice he would concede that his father is unable to manage his affairs and in order to avoid delay and protraction of the main suit, he would like to act as his father’s next friend. These two irreconcilable and indeed contradictory stands taken respectively by the father and the son, do create a cloud of suspicion as to the capability, of the first plaintiff to stand on his legs and conduct the litigation. No doubt, the first defendant by applying for the examination of the first plaintiff by an expert, in I.A. No. 374 of 1962 has taken a defined step towards the appointment of a guardian for the first plaintiff. He has also made indeed self-serving statements in the course of the proceedings that the suit is not maintainable without a next friend being appointed for the first plaintiff. Appointment of a guardian or next friend to a. person who is incapable of managing his affairs is a serious inroad upon the litigant’s right to carry on his suit. Such wedging of a personal right in a party cannot be deduced, inferred or even taken for granted because the other parties to the lis have no objection to such an appointment. The Court has a primary duty to perform in such circumstances. It has to judicially enquire wheth