RAGHAVENDRA GUPTA Vs. N. NARASIMHAN AND ORS.

JUDGEMENT

(1.) This is a Revision under Sec. 115 of the Code of Civil Procedure from the Judgment and order dated 21.9.94 delivered by Sri. Desigowda, IX Additional City Civil Judge, Bangalore on 1.A.I. moved under Order 32, Rule 15 of the Code of Civil Procedure for appointment of the next friend or Guardian of Defendant No. 1 Sri. N. Subbarathnam to defend the legal proceedings in Original suit No. 5756/91 allowing the application of the plaintiffs and appointing Sri. V.R. Radhakrishna S/o Raghavendra Rao as Next Friend and Guardian of Defendant No. 1 to prosecute the above proceedings until further orders.

(2.) Before proceed, I may mention that in the body of the order, it appears there is some mistake. The name of Sri. Raghavendra Rao has been shown as person sought to be appointed as Guardian, but that mistake has been later on corrected only in the operative part of the order mentioning the name of correct person as V.R. Radhakrishna.

(3.) Sri. H. Billappa, the learned Counsel for the Revisionist one of the defendants in the suit, contended before me that the order of appointment of Next friend or guardian of Defendant No. 1 (who is major) suffers from jurisdictional error as the same has not been passed after due compliance with the requirement of law under Order 32 Rule 15 of the Code. The learned Counsel submitted that no enquiry as contemplated under Order 32 Rule 15 has been conducted in that case and as such the order appointing the Guardian or the Next Friend to the major defendant No. 1 is illegal and without jurisdiction. The learned Counsel invited my attention to certain portions of the order itself. He further submitted that the Court had relied on certain certificates produced by the two Doctors and produced by the plaintiffs, which relate to 1984 and 1988. Those Doctors have not been examined. He further submitted the enquiry has to be conducted with regard to the question whether the defendant No. 1 at the time of institution of suit or at the time when the application was moved was of unsound mind or not. The learned Counsel contended that the application in the present case has been moved in 1991 and order allowing the same was passed in 1994. He submitted those certificates could not be relied to determine the question of unsoundness of mind or to decide the question of incapability of the defendant- to prosecute the defence on the basis of those certificates particularly when the Doctors had not been examined and defendants had no opportunity to prosecute or say. The learned Counsel further submitted that appointing a Guardian to defend the proceedings of the suit on behalf of a person who really is not a person of unsound mind nor ever adjudged as unsound mind is nothing but depriving his right to prosecute and defend his own case. The learned Counsel submitted as such, the order deserves to be set aside to it suffers from illegality on the part of court, in exercise of its jurisdiction.