IMPORTANT POINT
It is not proper for trial Court to step into shoes of a Medical Expert to assess unsoundness of mind of defendant.

Sheel Nagu, J.— Heard.

2. This petition under Article 227 of the Constitution of India assails the impugned order dated 9.10.2013 (Annexure PI) passed in Civil Suit No. 19A/2012 by Civil Judge Class-II, Shivpuri, by which the application under Order 32 of the Code of Civil Procedure (“Code” for brevity) for appointment of next friend of the defendant for reason of the defendant being of unsound mind has been rejected.

3. Learned counsel for the rival parties are heard on the question of admission and final disposal.

4. Learned counsel for petitioner inviting attention of this Court to the provisions of Order 32, Rule 15 of the Code submits that the trial Court as per the second part of the said provision is obliged under the law to conduct an enquiry in regard to a person who has not been adjudged to be of unsound mind and to be incapable for reason of mental infirmity to protect his interest in the litigation. Reliance is placed on the judgments rendered by the Punjab & Haryana and Madras High Courts in the cases of Dilbagh Singh v. Sawinder Kaur, AIR 2011 P&H 38.; C.S. Navamani v. C. K. Sivasubramanian, AIR 2006 Madras 347.; and G.V. Lakshminarayanan v. G. V. Nagammal, AIR 2007 Madras 231.

5. Per contra, the learned counsel for respondent/landlord contends that the impugned order has rightly been passed on the basis of lack of material particulars and sufficient documents to demonstrate unsoundness of mind.

6. A perusal of the impugned order indicates that the sole ground, on which the trial Court dismissed the application under Order 32 of the Code, is that the medical documents produced for vouching ailment of unsoundness of mind of the petitioner were found not sufficient to indicate that the petitioner has been rendered so incapable due to unsoundness of mind that he is not able to prosecute his case.

7. A perusal of the provisions of Order 32 Rule 15 of the Code, which has been interpreted by the above said decisions of the High Courts, makes it clear that trial Court has to conduct an enquiry under Order 32 Rule 15 of the Code in respect of a person who has not been adjudged to be of unsound mind. The term “enquiry” has been explained by the aforesaid decisions of the High Courts of Punjab & Haryana and Madras to mean and to comprise of two essential ingredients which are as follows:

(1) questioning a lunatic by the Judge himself in open Court or in chambers, in order to see whether he is really a lunatic or of unsound mind;

(2) as the court is normally presided over only by a layman to send the alleged lunatic to a Doctor for report about his mental condition, after keeping him under observation for some days.

8. Madras High Court held that this real enquiry is required to be held to ascertain the unsoundness of mind before deciding the application under Order 32 of the Code for appointment of next friend.

9. Scrutiny of the impugned order does not indicate that any enquiry in its real sense as per the provisions of Order 32 of the Code has been conducted by the trial Court. The trial Court in fact has assumed upon itself the responsibility of deciding the mental condition of the defendant. The presiding officer of a Court is not equipped with the knowledge or experience in medical field and, therefore it was not proper for the trial Court to step into the shoes of a Medical Expert to assess the unsoundness of mind of the defendant.

10. Consequently, the trial Court has failed to exercise the jurisdiction vested into under Order 32 of the Code impelling this Court to step into exercise supervisory jurisdiction under Article 227 of the Constitution of India.

11. Accordingly, this petition under Article 227 of the Constitution of India is allowed. The impugned order so far as it relates to rejection of the application under Order 32 of the Code is set aside with a direction to the trial Court to reconsider the application of the defendant under Order 32 of the Code in accordance with law as expeditiously as