VINOD KUMAR (UNSOUND MIND) Vs. TARACHAND

JUDGEMENT

(1.) The order dated 19.07.2017 passed by the 9th Additional District Judge, Mathura in Civil Appeal No. 155 of 2016 (Vinod Kumar and others Vs. Tarachand and others) in rejecting the application 35-Ga dated 18.07.2017 is under challenge in the present petition. The said application was filed under Order 41, Rule 27 of the Code of Civil Procedure with the request to permit the appellant to bring on record the prescription of the treatment of plaintiff No. 1 Vinod Kumar with list 24 and further to permit the appellant to produce oral evidence to prove those documents. The said application has been filed allegedly in the light of the order dated 31.03.2017 passed by the first appellate court under Order 32, Rule 15 of the Code of Civil Procedure to make enquiry whether the plaintiff No. 1 was suffering from any mental infirmity or he being a person of unsound mind was incapable of protecting his interest before the court of law.

(2.) In the order impugned, it is recorded by the first appellate court that pursuant to the directions given in the order dated 31.03.2017, Sri Vinod Kumar, plaintiff No. 1 had appeared in the court and the documents filed with list paper No. 24-Ga have been admitted in evidence by order dated 06.07.2017. Some enquiry was made by the Court from Sri Vinod kumar, the plaintiff No. 1 when he appeared in person. The appeal was heard on merits and 11.07.2017 was fixed for further arguments. At this stage, the application 35-Ga was moved by the appellant for allowing her to lead oral evidence which was rejected being unjustifiable.

(3.) Learned counsel for the petitioner vehemently argued that by the order dated 02.03.2017 the application 17-Ga moved by the petitioners praying the appellate court to examine the mental condition of plaintiff No. 1, was rejected. In petition under Art. 227 No. 1546 of 2017 (Vinod Kumar and another Vs. Tarachand and others), this court though refused to interfere in the said order dated 02.03.2017 on the ground that the appeal had been finally heard and a date had been fixed for delivery of judgement, however, it was left open for the petitioners to challenge the validity of order dated 02.03.2017 in an appeal filed against the appellate decree. As a consequence thereof, the rejection order dated 02.03.2017 had been recalled by the appellate court vide order dated 31.03.2017 and the petitioner No. 2/appellant No. 2 was given opportunity to produce appellant No. 1 namely Vinod Kumar along with documentary evidences of his treatment so as to make an enquiry regarding his mental condition.