IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK JAIN

th

ON THE 7 OF JANUARY, 2026

MISC. PETITION No. 5608 of 2025

MOHD SAFAR KHAN

Versus

AHSOK KUMAR MISHRA AND OTHERS

Appearance:

Shri Akhilesh Kumar Jain - Advocate for petitioner.

ORDER application was rejected by the trial Court on 09.01.2024 on the ground that under Order 32 there is a provision for suit by or against persons of unsound mind to be prosecuted or defended through next friend, but there is no provision that the father of person of allegedly unsound mind to be permitted to tender evidence and by reserving liberty to the petitioner/defendant No.1 to produce his father as defendant's witness, the application was rejected. It was also held by the trial Court that looking to the medical papers produced on record, the petitioner does not appear to be a person of unsound mind.

By way of this petition, challenge is made to order Annexure P/8 dated

17.09.2025 whereby the application under Order 32 Rule 1 read with Rule 15 of CPC filed by the petitioner/defendant No.1 has been rejected holding that there are no facts available before the Court to hold that the

petitioner/defendant No.1 is a person of unsound mind.

2. A suit for recovery of money has been filed against the petitioner/defendant No.1 in which he has filed a written statement and in the written statement dated 25.02.2021 an averment has been made that he is a person of unsound mind and during the period of mental ill-health his cheque book was lying unattended which was misplaced by some children and some leaves came into possession of the plaintiff on which the cheque in favour of the plaintiff was prepared. Thereafter an application under Order 32 Rule 14 CPC was filed before the Court seeking leave of the Court that in place of defendant No.1 his father be permitted to tender evidence. The said

3. The aforesaid order was challenged before this Court in M.P. No.816/2024 which was withdrawn with liberty to file appropriate application before the trial Court.

4. Thereafter, the petitioner filed an application under Order 32 Rule 1 read with Rule 15 CPC for appointment of next friend of the petitioner. This application has now been rejected vide order Annexure P/8, which is impugned in the present petition.

5. From a perusal of the order Annexure P-8 dated 17.09.2025, it is evident that the Court has given much weightage to the fact that the earlier application for similar purpose has been rejected on 09.01.2024 and in the medical papers filed before the Court, it is indicated that petitioner is suffering from insomnia and nothing substantive is indicated to show that he is a person of unsound mind. The Trial Court on the basis of such material i.e. medical papers has arrived at a conclusion that the petitioner/defendant No.1 is not a person of unsound mind.

6. From a perusal of the order of the trial Court it appears that the trial Court has not conducted inquiry into the question that whether the petitioner is a person of unsound mind. It has been held by a coordinate Bench of this Court in the case of Narendra Kumar Hariyani vs. Sanjay Goyal, 2014(2)

MPLJ 455 as under:-

"6. A perusal of the provisions of Order 32 Rule 15 of the Code, which has been interpreted by the abovesaid 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.

7. Madras Hi