The main legal point established is that the court must conduct a proper enquiry when a party claims not to be of unsound mind, rather than accepting the claim without proper investigation.

JUDGMENT :

S.C. Mohapatra, J. - Defendant No. 18 is petitioner.

2. When notice in the suit was sent to defendant No. 18, Process Server reported that she is made and accordingly, such notice was affixed. On receipt of report of the Process Server Trial Court appointed the Guardian ad litem to proceed with suit. When defendant No. 18 came to know that the suit is continuing without notice to her by appointing a guardian to represent her interest, she filed an application that she is not mad. Trial court has rejected such petition in view of the fact that her madness has already been accepted and a guardian has been appointed which order has remained unassailed. This is grievance of the defendant No. 18.

3. Opposite Party No. 1 is the plaintiff, who has entered appearance. He would be affected if the impugned order is set aside in Civil Revision. Accordingly, I heard petitioner and plaintiff in this Civil Revision. Interest of other defendants would not be affected in any manner.

4. Under Order 32 Rule 15 CPC a party who is a person of unsound mind can be represented by another. Where a suit is filed on his behalf by mother representing him as his next friend. Court is to make an enquiry if defendants allege that plaintiff is not unsound. Similarly where a plaintiff describes a defendant as person of unsound mind and on that account desires the defendant to be represented by a guardian if challenged, the same is to be enquired into. Since court has power to issue notice to such defendant as provided under Order 32 Rule 3(4) read with Rule 15 Civil Procedure Code. Present case is not of that type. Here defendant No. 18 was not described as person of unsound mind. For the first time process server reported her to be of unsound mind and affixed the notice. Same was accepted to be sufficient and a guardian was appointed by court.

5. Notice by affixture is provided in Order 5 Rule 17 CPC which authorizes the manner of service to be sufficient on certain events only as provided therein. Court has not followed the mandate in Order 5 Rule 19A Civil Procedure Code. In case the report of service by post would have indicated the same as has been reported by process server, court might have been justified in proceeding with the suit treating Defendant No. 18 as a person of unsound mind since there was no objection to it. I am inclined to hold in the facts of this case that trial court acted with material irregularity in accepting the report of the process server.

6. Position in this case is worse. Defendant No. 18 herself comes forward and asserts that she is not of unsound mind. When a defendant alleged the plaintiff not to be of sound mind this Court in the decision reported in Mayadhar Samant v. Birabar Kumar (1961) 4 OJD 259, held that for determination of the question plaintiff should have been medically examined. Where claim is made that a party is insane, he may also take steps under the Lunancy Act. Where a party himself disclaim that he is not of unsound mind, there is no provision in the code that court would treat him as insane. On this account also Trial Court exercised jurisdiction with material irregularity.

7. Trial Court ought to have got defendant No. 18 examined by competent experts after he would have been prima facie satisfied on personal appearance of Defendant No. 18 before him that she might be of unsound mind, This has not been done. Merely because there is an earlier order that she is of unsound mind and a guardian has appointed to represent her, Trial Court is not justified to refuse to entertain her application on the ground that the order is not open to review. When a party comes forward to the court and claims that she is not of unsound mind, there is no scope that name of such party is utilized for delay of trial by another. Court in such circumstances could have directed the party to appear in person. Where such steps are not taken, a decree passed may not be binding on the party and would only further litigation, Co