1980 Supreme(MP) 540

IN THE HIGH COURT OF MADHYA PRADESH
S. K. Seth, J.
Nandoolal - Appellant
Vs.
Mahant Laxminarayan - Respondent
C. Revn. No. 243 of 1980 (J)
Decided On : 07-04-1980

Headnote:Civil Procedure Code, 1908 – O. 32, R.15 – bounden duty of the Court to make an enquiry to find out whether the party became incapable of protecting interest by reason of mental infirmity.

        Short Note

       1. The revision is directed against the order dated 7 – 2 – 1980 passed in Civil suit No. 6 – A of 1967. By the said order, the Additional District Judge rejected the application made on behalf of the defendant – applicant by his son Balram to the effect that as the defendant – applicant, during the pendency of the suit, had become incapable, by reason of mental infirmity of protecting his interest, the said Balram be appointed as the guardian of the defendant – applicant for the suit.

       2. Held: I am of the opinion that the order passed in question by the trial Court suffers from a material irregularity in the exercise of its jurisdiction by the said Court and if the same was allowed to stand, it might occasion a failure of justice to the defendant – applicant. From the conduct of the defendant – applicant at the time of recording of his evidence on commission, it could not be said that the application in question lacked in bona fides. Further, the application in question was also supported by a certificate from a Vaidya. In the circumstances in question, once an application of the nature was made by the defendant – applicant's son under Order 32, rule 15 of the Code of Civil Procedure, it was the bounden duty of the Court to make an enquiry into the matter in order to find out whether the defendant – applicant had become incapable, by reason of any mental infirmity, of protecting his interest and to pass a suitable order accordingly. .It appears that the trial Court, while rejecting the application in question, was swayed by the consideration that the suit in question had been pending since long. However, the said consideration was no ground for failing to exercise jurisdiction lawfully vested in the Court under Order 32, rule 15 of the Code or acting with material irregularity in the exercise of the said jurisdiction. Revision allowed.