MOHAN LAL Vs. ADDL DISTRICT AND SESSIONS JUDGE

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner Mohan Lal challenging the order dated 8-1-2004 passed by Additional District and Sessions Judge (Fast Track) No. 3, Jaipur.

(2.) THE facts in brief are that plaintiff Moti Lal and defendant Phool Chand are real brothers. A Civil Suit was filed by respondent no. 2 and 3 namely Moti Lal and Smt. Rudi with the prayer that the sale deed dated 23-12-1998 be set aside and a permanent injunction be issued against the defendant Mohan Lal and Phool Chand restraining them from interfering in the enjoyment of the suit property by the plaintiff.

(3.) A careful analysis of the provisions contained in Order 32 Rule 15 would make it clear that such provisions have been engrafted in the code in order to safeguard the interest of the persons who upon enquiry are found by the Court to be incapable, by reason of any mental infirmity of protecting their interest when suing or being sued. What should be the nature and kind of enquiry to determine the fact that the defendant Phool Chand was incapable of protecting his interest when being sued is the core question that requires determination in the present proceedings. Kerala High Court in the case of Balakrishnan (supra) which has been cited by learned counsel for the petitioner had the occasion to consider this question. It was held by the Court as under:- " To treat a person as one incapable of protecting his own interests by reason on unsoundness of mind or mental infirmity, is a very serious matter and it is in recognition of the seriousness of the matter that the legislature has insisted on a proper inquiry being made into that matter to enable the Court to come to a conclusion about the mental condition of the person concerned. The inquiry contemplated by R. 15 is undoubtedly a judicial inquiry with notice to the party concerned or to any other person competent to speak on behalf of such party. It is for the Court to decide upon the manner in which and to the extent to which such inquiry has to be conducted to enable it to come to a satisfactory conclusion as to the mental condition of the party concerned. It notice of such inquiry is given to the party, he may himself appear in Court and participate in the inquiry. If he appears or is brought before Court, his presence might enable the Court to form an impression about his mental condition. If it is deemed necessary he may be got examined by a medical expert and a certificate obtained from him as to whether he is mentally fit to protect his own interests. The necessity of conducting such an inquiry so that the Court may be fully satisfied that the defendant, by reason of unsoundness of mind or mental infirmity, is incapable of protecting his interests in the suit, has been emphasized in Mohammed Ibrahim vs. Mohammed Marakayar, ILR 1949 Mad 343: (AIR 1949 Mad 292) (A) and in Balakrishnan vs. Balachandran, 1956-1 Mad LJ 459 (B) where also the scope of O. 32, R. 15 had come up for consideration. "