ORDER

11.8.2006 — This writ application is directed against the order dated 12.12.2005 passed by the learned Civil Judge (Junior Division), Khandapada in C.S. No.17 of 2003 rejecting the petition filed by the plaintiff-petitioner under Order 32, Rule 15 of the Code of Civil Procedure.

2. The suit had been filed through the next friend of the petitioner challenging the validity of execution of sale-deed bearing No.2140 dated 22.11.2002. It was the case of the next friend that the plaintiff-petitioner is a deaf, dumb and unmar¬ried lady and is also of unsound mind. During pendency of the suit an application under Order 32, Rule 15 of the C.P.C. was filed by the next friend stating therein that the plaintiff-petitioner has not been adjudged to be of unsound mind and she is unable to safeguard of her own interest in the suit. It is also alleged in the petition that the plaintiff has been kept away by the defendant and is not within the control of the next friend and therefore an enquiry is required to be made in that regard and the plaintiff is required to be examined in the Court. Objection was filed by the defendant-opposite party stating therein that earlier an application under Section 151 of C.P.C. was filed by the next friend for sending the matter to the Court of the Dis¬trict Judge, Puri to determine/adjudicate as to whether the plaintiff is of unsound mind or not and the said petition has been rejected. After rejection of the said petition, this appli¬cation under Order 32, Rule 15 C.P.C. has been filed for the self-same purpose. Learned Civil Judge in the impugned order rejected the application solely on the ground that on earlier occasion the same prayer had been turned down.

3. Learned counsel for the petitioner challenging the order submitted that unless a person is adjudged by the competent Court as of unsound mind before or during pendency of the suit, the Court itself on enquiry can also find out as to whether such person is incapable by reason of any mental infirmity in protect¬ing his/her interest when suing or being sued. It was further contended that the plaintiff has not been adjudged to be of unsound mind by the competent Court, under the Indian Lunacy Act and therefore the only course open is that the Court deciding in the suit has to make an enquiry as to whether the plaintiff is incapable by reason of any mental infirmity of protecting her interest in the suit. Learned counsel for the opposite party, on the other hand, submitted that the suit was presented by next friend on behalf of the plaintiff and she had been described as of unsound mind. It was therefore necessary to adjudge such a question at the very beginning and not during pendency of the suit. According to the learned counsel once a suit had proceeded to some extent, power under Order 32, Rule 15 of C.P.C. cannot be exercised and only course open is to declare the plaintiff of unsound mind by the competent Court under the Indian Lunacy Act. It was also contended that such an application filed earlier having been rejected by the trial Court, petition under Order 32, Rule 15 of C.P.C. was not maintainable.

4. Order 32, Rule 15 of the Code of Civil Procedure pro¬vides as follows :

“Rules 1 to 14 (except Rule 2-A) 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.”

This Court in the case Rukmani Bewa v. Radhika Parida & others, reported in Vol.73 (1992) CLT 226 while dealing with the aforesaid provision held as follows :

“Any person can file a suit on behalf of a lunatic as a next friend. However, when challenged, an enquiry is to be made about the mental capacity of the person alleged to be lunatic to find that by reason of mental infirmity, he would not be able to protect his interest