GOPAKUMAR Vs. MADHUSOODANAN NAIR

JUDGEMENT

(1.) What is the scope of 'enquiry' as contemplated under Rule 15 of Order XXXII CPC is the main question came up for consideration. A suit was instituted by a mentally unsound person, through a next friend, as mandated under Order XXXII CPC. During the pendency of the suit, the original plaintiff, the alleged mentally ill person, came up with an application in I.A.No.2245/2014 expressing his non-willingness to proceed with the suit. Thereon, the trial court conducted an 'enquiry' as to the mental capacity, by putting certain questions to the person who was present in court and recorded the same along with the answers given and found that certain answers were not rational, hence found that he is incapable of doing his affairs due to mental incapacity. Consequently, the application was dismissed. It is against that order, the first defendant came up in revision.

(2.) In order to bring up a suit under Rule 15 of Order XXXII CPC, there should be an enquiry as mandated, as to find out the alleged mental infirmity and incapacity to protect the interest of any person, who put the law in motion through next friend or a court guardian. The appointment of a court guardian or grant of permission to sue through a next friend without conducting an enquiry as mandated under Rule 15 cannot be sustained, as the compliance of requirement under the said Rule is mandatory and the legal position was very much settled by the Apex Court in Kasturibai and others v. Anguri Chaudhary [(2003) SCC 225]. It is by virtue of Rule 15, the provisions dealing with the institution of suit through a next friend or appointment of guardian to a minor enumerated under Rule 1 to 14 is made applicable to two sets of persons namely 'a person adjudged of unsound mind' and 'a person incapable of protecting his interest by reason of any mental infirmity'. Both are different though there may be some overlapping. The first limb 'a person adjudged of unsound mind' stands for a person who have been adjudged of unsound mind and it is clear from the wording used 'a person adjudged of unsound mind' which stands for an adjudication rendered in a judicial inquisition by the competent court or the authority, as the case may be. The expression 'adjudged' incorporated under Rule 15 hence stands for a judicial inquisition and the determination thereof under the provisions of Indian Lunacy Act, 1912 (Sec. 41) which was subsequently substituted by the Mental Health Act, 1987 (Sec. 50) and at present by Mental Healthcare Act, 2017. Under the Indian Lunacy Act, 1912, the Mental Health Act, 1987 and the Mental Healthcare Act, 2017, a person suffering from mental retardation or a mentally retarded person is excluded from its operation under the definition 'mentally ill person' and 'mental illness' presumably on the reason that what is contemplated under the abovesaid Acts is a judicial inquisition pertaining to mental illness/lunacy/unsoundness of mind/insanity other than mental retardation. The corollary is that the first limb of Rule 15 would come into operation only when there is an adjudication under an inquisition proceeding by a competent court/authority adjudging a person to be of unsound mind before or during the pendency of the suit and the court is bound to accept such adjudication under the first limb of Rule 15 of Order XXXII CPC so as to grant permission to sue as next friend or to appoint a court guardian, wherein there is no scope for any enquiry or to interfere with any adjudication rendered under an inquisition proceeding by the court. The only question that can be considered under the first limb is whether there is any adjudication under a judicial inquisition regarding unsoundness of mind, lunacy, insanity of a particular person. The decision rendered by the Apex Court in Kasturibai's case (supra) has to be distinguished as applicable only to the second limb of Rule 15 which would come into play in the absence of any such adjudication on a judicial inquisition. When there is no such adjudication, the matter would fall under the second limb of Rule 15 of Order XXXII CPC which empowers the court to go into each and every question of incapability to protect the interest of a particular person by reason of any mental infirmity which is so wide enough and includes a case of mental retardation, mental ailment or any other mental disorder to the extent of making that person incapable of protecting his interest or to take a rational judgment, besides a person of unsound mind/insanity/lunacy. The user of the word 'found by the court on enquiry' is applicable only in relation to the second limb of Rule 15 of Order XXXII CPC which empowers the court to conduct an enquiry so as to satisfy itself regarding the incapacity on account of any mental infirmity.

(3.) It is too adventurous for the courts to arrive at a conclusion under the second limb of Rule 15 merely on the reason that some of the answers which were given on examination of the person were not found to be rational. What has to be tested under the second limb involves the mental incapacity on account of any mental ailment or disorder which would include a question of insanity, complete impairment, unsoundness of mind etc. Hence, the court should adopt a pragmatic approach and if it is found necessary, call for further evidence including medical evidence, instead of jumping into a conclusion merely on the ground that some of the answers which were given by the person were found to be not convincing or rational. The procedure, then available, is to refer the parties to a Medical Board so as to obtain a report regarding any mental ailment, retardation or disorder or any impairment of mental ability to take a rational decision pertaining to his affairs or to protect his interest. The extensive jurisdiction vested with the court under Order XXXII CPC was elaborately considered by a three Judge Bench of Apex Court in Sharda v. Dharmpal [(2003) 4 SCC 493] and laid down that:-