GODAWARI DEVI Vs. RADHA PYARI DEVI

JUDGEMENT

(1.) Whether a party to the suit has the right to put the soundness of mind of the opposite party (not already adjudged to be of unsound mind) in issue and claim an enquiry therefor under O.35 R.15 of the Civil P.C. is the somewhat ticklish question arising in this civil revision, which has necessitated this reference to the Division Bench.

(2.) The facts are not in serious dispute. The plaintiff opposite party had instituted the title suit for partition of her one-fourth share in the suit properties, wherein she later brought an application for an injunction. It would appear that a detailed show cause was filed on behalf of the defendant petitioner against the said application and in paras 33, 34 and 35 thereof a stand was sought to be taken that the plaintiff had lost her mental powers and was unable of protecting her legal interests and, therefore, the suit should have been brought by her next friend. Later a cryptic application purporting to be under O.32 R.15 of the Civil P.C. was brought on behalf of the defendant petitioner claiming that unless an enquiry is made with regard to the mental capacity of the plaintiff the suit could not proceed any further.

(3.) The matter came up before the learned Subordinate Judge below on the 16th April, 1982 when the sole plaintiff Shrimati Radha Pyari Devi was present. The court apparently questioned her to test her mental capacity and found her to be of wholly sound mind and in no way incapable, by reason of any mental infirmity, of protecting her legal interest. Consequently he rejected the application and proceeded to try the injunction matter. Aggrieved by the said order, the present civil revision petition has been preferred, which originally came up before my learned Brother B. P. Jha sitting singly. Noticing the significance of the issue involved, the matter was referred to the Division Bench.