SALESH SAHA Vs. GOUR SAHA

JUDGEMENT

(1.) This appeal is directed against the judgment and preliminary decree passed by the Learned Civil Judge (Senior Division), Malda on 31st March, 2010, in Partition Suit No. 172 of 2007, at the instance of the defendant Nos. 1 to 7/appellants. A preliminary decree for partition was passed in the said suit by holding inter alia that the plaintiff/respondent No. 1 has acquired 1/8th share in the suit property by virtue of his purchase of 1/8th share from an admitted co-sharer, namely, Ashima Sana through a registered deed of conveyance dated 28th May, 2007. Though, the legality of the said sale was challenged by all the defendants including Ashima Sana by filing two sets of written statements; one by Ashima herself and another by the remaining defendants, namely, defendant Nos. 1 to 7, but the defendant No. 8, namely, Ashima did not ultimately contest the said suit as she withdrew herself from participating in the proceeding of the said suit while others contested the said suit by participating in the proceeding of the said suit. As a matter of fact, said Ashima Sana, after filing her written statement independently in the said suit, filed an application under Order 32 Rule 15 of the Code of Civil Procedure praying for permission of the Court for allowing her to defend the said suit through the next friend as she was deaf and dumb and was unable to protect her interest in the suit property by reason of her mental infirmity. The said application of the defendant No. 8 was rejected by the Learned Trial Judge on 4th February, 2010, vide Order No. 63, by holding that the said defendant is not a person of unsound mind though she was deaf and dumb, and as such, she cannot be allowed to be defended in the said suit through her next friend. The said defendant No. 8 did not challenge the said order in any higher forum. Thus, she accepted the said order which attained its finality. However, she stopped participating in the trial of the said suit thereafter and allowed the suit to be decided ex parte against her. It is only when the said suit was ultimately decreed in the preliminary form after the same was contested by the defendant Nos. 1 to 7, who are the other brothers and sisters of Ashima, the said defendant No. 8 appeared in this appeal which was filed by the other brothers and sister of said Ashima and participated in the hearing of the appeal for defending herself by taking the plea which she set up in her written statement filed in the suit. In fact, Mr. Bhattacharjee, learned Advocate, appearing for the said respondent No. 8, tried to impress upon us that the order passed by the learned Trial Judge rejecting her application under Order 32 Rule 15 of the Code of Civil Procedure, was illegal as the said application was rejected by the learned Trial Judge without holding any inquiry as contemplated under the provision of Order 32 Rule 15 of the Civil Procedure Code. He further submitted that since his client, being a deaf and dumb, was incapable of protecting her interest by reason of her mental infirmity, she should have been allowed to contest the said suit through her next friend in terms of the provision contained in Order 32 Rule 15 of the Civil Procedure Code and the learned Trial Judge having not allowed her to be represented by her next friend, the decree which was passed in such a suit, was a nullity and as such the said decree cannot be given any effect.

(2.) Mr. Bhattacharjee, however, frankly admitted before this Court that appointment of a guardian and/or a next friend over a person, who is deaf and dumb, is not a matter of course. However, once it is proved that a deaf and dumb is incapable of protecting her Interest in the suit property by reason of her mental infirmity, he or she should be allowed to be represented in the suit either by his or her guardian or next friend. He further submitted that the provision contained in Order 32 Rule 15 of the Code of Civil Procedure contemplates an inquiry as to the mental infirmity of such a person who is deaf and dumb and if it is found in such enquiry that he/she is unable to protect his/her interest in the suit property because of his/her mental infirmity, then prayer for appointment of guardian and/or next friend for her cannot be denied and the vice-versa is also true. In support of his submission he relied upon the following decisions of different High Courts:--

(3.) In both the aforesaid cases it was uniformly held that for ascertaining mental infirmity of a deaf and dumb person in the context of Order 32 Rule 15 of the Civil Procedure Code, the Court is bound to conduct inquiry as to whether the deaf and dumb person is capable of protecting his own interest or not and if the Court finds that such a person is incapable of protecting his interest, the Court is obliged to appoint next friend for such a person. It was further held therein that if on the other hand the Court finds on such inquiry that the person is otherwise capable of protecting his interest without a next friend, the Court shall remove the next friend, if already available and permit the person, who alleged to be of unsound mind or suffering from mental infirmity, to conduct the litigation himself.