The trial court must record its satisfaction regarding the mental condition of a person alleged to be of unsound mind before appointing a guardian.

JUDGMENT

Harkesh Manuja, J.(Oral) - CM-12016-CII-2022

This is an application for placing on record photocopy of affidavit of Hoshiyar Singh dated 07.02.2022 and original affidavit of Hoshiyar Singh dated 09.09.2022.

For the reasons mentioned in the application, the same is allowed. Photocopy of affidavit of Hoshiyar Singh dated 07.02.2022 and original affidavit of Hoshiyar Singh dated 09.09.2022, are taken on record subject to all just exceptions.

Main Case

1. By way of present revision petition, the petitioner has challenged the order dated 12.07.2022 passed by the Court of learned Civil Judge, (Junior Division), Bhiwani, dismissing an application filed at his instance, for conducting medical examination of Sheokaran i.e. the plaintiff.

2. In the present case, a suit for declaration and permanent injunction has been filed arraying Sheokaran as plaintiff, through Hoshiyar Singh being his real brother and next friend having no adverse interest against Sheokaran. In the said suit, an application was filed at the instance of Hoshiyar Singh for examination of Sheokaran by a medical board, determining his mental condition/status. The learned trial Court rejected the said prayer while passing the impugned order dated 12.07.2022, observing that in the absence of any medical record, the prayer could not be allowed.

3. By way of present revision petition, learned counsel on behalf of the petitioner submits that Sheokaran is an old man of 83 years of age and is residing under the supervision and control of respondent No.l and as such, he could not produce any medical record showing his mental status and thus, submits that he should be provided Court assistance for ascertaining the mental condition of Sheokaran, who according to him is of unsound mind.

4. At the time of preliminary hearing, Mr. Ajay Vijayrania, Advocate has put in appearance on behalf of respondent No.l and he very fairly submits that though no medical document has been produced on record by the petitioner regarding mental status of Sheokaran yet he is not opposing in case Sheokaran is called by the learned trial Court just to prima facie satisfy itself regarding his mental condition. He also submits that though Sheokaran was called by the learned trial Court on an earlier occasion for the aforesaid purpose, however, this fact was not recorded in any of the zimni orders.

5. Having heard the learned counsel for the parties and gone through the records, I find that as per Order 32 Rule 3 (1) CPC, the learned trial Court has to record its satisfaction regarding the mental condition of any person who has been alleged to be of unsound mind before appointing someone as a guardian so as to protect his interest in a pending suit. In the present case, while passing the impugned order, the Court has simpliciter stated that since there was no medical evidence produced at the instance of the petitioner, as such, the medical examination of Sheokaran could not be ordered. Whereas, once a specific and categorical averment has been made regarding the mental status of Sheokaran, it would be in the fitness of things that Sheokaran is requested to appear before the learned trial Court for having a genuine interaction with him so that the learned trial Court is able to make a prima facie satisfaction about his mental condition/status as enjoined under sub-rule 1 of Rule 3 of Order 32 CPC, particularly when this innocuous and genuine prayer has not been opposed by respondent No.l. The entire exercise shall be carried out in presence of both the parties.

6. Accordingly, in view of what has been discussed hereinabove, the present revision petition is disposed of.