NIRENDRA LALL BHATTACHARYYA Vs. BEPIN CHANDRA BHATTCHARYYA

JUDGEMENT

(1.) THE substance of the contention that has been urged on behalf of the appellant in this appeal relates to the question whether there should now be an enquiry such as is contemplated by Rule 15, Order 32 of the Code. THE learned Judge was of opinion that inasmuch as there has been no adjudication of the question of soundness of mind of the plaintiff who has not been adjudged to be of unsound mind, there must be an enquiry for the purpose of determining whether by reason of unsoundness of mind or mental infirmity the said plaintiff was incapable of protecting his interests as plaintiff. It is true that there is some evidence in the shape of statements that are to be found on the record which would indicate that it was the case of the defendants as well as that the aforesaid person was of unsound mind. But the words of the rule require something more, namely that it should be found on enquiry that by reason of unsoundness of mind or mental infirmity the person is incapable of protecting his rights as a plaintiff or as a defendant. Such a finding will have to be arrived at and it must be arrived at upon an enquiry properly held. This disposes of the main contention that has been urged in support of this appeal. But even though that contention is disposed of against the appellant the question that arises further is what should be the order which should be made in this case. We think it is not necessary that the enquiry in this case should be held by the trial Court and we are of opinion that the directions which the learned Subordinate Judge has given as regards the course to he adopted on the completion of enquiry are not correct. We are of opinion that the enquiry under Rule 15, O 32 should be held by the learned Subordinate Judge himself In our opinion, such an enquiry should be held by the learned Subordinate Judge himself because we do not apprehend that the enquiry is likely to be a lengthy or a protracted one.

(2.) WE are further of opinion that if on the result of such enquiry the learned Judge thinks that such unsoundness of mind as is required by the rule has been made out he will hold that the trial that was held in the Court of first instance, although there was no express order appointing Narendra Lall Bhattacharyya, father of the plaintiff, as his next friend was in order, and in that case it will be necessary for the learned Judge to go into the merits of appeal in order to dispose of it. If, on the other hand, ha comes to be of opinion that such unsoundness of mind as is contemplated by the rule has not been made out, it will have to be held that the plaint that was presented was not in order and as a necessary consequence of such a finding it will have to be held further that the proceeding that followed were not proceedings taken in accordance with law and consequently the decree that was passed in the suit will have to be held as a nullity. In the latter event, it will, of course, be open to the representatives of the alleged lunatic to institute a fresh suit, subject, of course, to any just exception as to limitation or otherwise that may be taken thereof. Costs of this appeal will abide the result, hearing fee two gold mohurs.