Muhammadali v SaidmuHAMMED and Nabeesa

_**OP(C).3328/16**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 OP(C) NO. 3328 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OS 84/2007 OF MUNSIFF MAGISTRATE** ## **COURT,PATTAMBI** ## **PETITIONER/S:** MUHAMMADALI AGED 60 YEARS S/O LATE MELEPURATH ABDUL KHADDAR @ KUNHAN,AGED 60 YEARS, NETHIRIMANGALAM AMSOM DESOM,PATTAMBI TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKAN ## **RESPONDENT/S:** 1 SAIDUMUHAMMED S/O LATE MELEPURATH ABDUL KHADDAR @ KUNHANNETHIRIMANGALAM DESOM, PATTAMBI POST, PALAKKAD DISTRICT.PIN.679303. ADDL. 2 NABEESA, AGED 38 YEARS W/O SAIDMUHAMMED,RESIDING AT NETHIRIMANGALAM DESOM, PATTAMBI POST, PALAKKAD DISTRICT, PIN-679303. ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 10.2.2017 IN I.A.No.222/2017 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**OP(C).3328/16**_ 2 **'C.R'** ## **V.G.ARUN, J.** ## **----------------------------------------------O.P(C).No. 3328 of 2016 ----------------------------------------------Dated this the 9[th] day of December, 2021** ## **JUDGMENT** Petitioner is the defendant in O.S.No.84 of 2007 on the files of the Munsiff-Magistrate's Court, Pattambi. The respondent, who is none other than petitioner's brother, has filed the suit, seeking a declaration that the sale deed executed by him in the defendant's name is void and consequently, to partition plaint schedule property and allot him 2/7 share. The declaration was sought on the ground that the respondent is a person undergoing treatment for epilepsy and mental illness and at the time when the sale deed was executed, respondent was not having mental capacity to execute the document. O.S.No.84 of 2007 was taken up along with O.S.No.111 of 2007 pertaining to the same property and filed by the defendant in O.S.No.84 of 2007 along with his other siblings. During trial, the respondent was examined as PW3. During the cross-examination of PW3, he was found to be incapable of giving rational answers. Thereupon, the cross-examination was stopped abruptly. Though respondent's wife filed an application seeking to get herself _**OP(C).3328/16**_ 3 appointed as the next friend, that application was also dismissed. The trial court discarded the evidence of the respondent, decreed O.S.No.84 of 2007 and dismissed O.S.No.111 of 2007. Aggrieved, the respondent and the plaintiffs in O.S.No.111 of 2007 filed separate appeals. By Exhibit P1 common judgment, the appeals were allowed and the suits remanded with a direction to conduct enquiry under Order XXXII Rule 15 of CPC and thereafter, to reach a finding as to the acceptance of evidence of PW3 and if necessary, to appoint a next friend and proceed with the trial of the suit in accordance with law. 2. After remand, the respondent's wife filed Exhibit P2 application seeking appointment as the respondent's next friend. The specific averments in Exhibit P2 is that, though, at the time of filing the suit respondent was having only mental abnormality, he is presently suffering from chronic psychosis, which can be managed only through regular medication. The petitioner filed Exhibit P3 objection stating that the respondent is capable of protecting his interest and no proper enquiry under Order XXXII Rule 15 has been conducted. By Exhibit P4 order, trial court appointed the respondent's wife as his next friend. The order revealed that the respondent was examined as part of enquiry under Order XXXII Rule 15. In the enquiry, the respondent was found to be incapable of giving rational answers. Finding that, treatment details of the respondent had been _**OP(C).3328/16**_ 4 produced during the earlier trial and further cross-examination had been discontinued on finding the respondent to be incompetent to testify as a witness, the trial court proceeded to hold that a detailed enquiry under Order XXXII Rule 15 is unnecessary. The original petition is filed challenging Exhibit P4 order. 3. Heard. 4. Before proceeding to consider the legal contentions, I am compelled to express anguish and concern about the manner in which the trial court has brushed aside the specific directions of the appellate court. In Exhibit P1 judgment, the appellate court had observed that the respondent had filed O.S.No.84 of 2007, and had contested O.S.No.111 of 2007 in his individual capacity. It was also noted that the respondent had been cross-examined for three days before stopping the examination abruptly. At the same time, trial court dismissed the application for appointing respondent's wife as his next friend. The appellate court also observed that, in spite of the contradictory findings, trial court did not call for a medical report for assessing the mental capacity of the respondent. It was based on the above observations that the appellate court directed proper enquiry under Rule 15 of Order XXXIII CPC to be conducted and to take decision on the acceptability of the evidence tendered by the respondent, based on such enquiry. _**OP(C).3328/16**_ 5 5. Surprisingly, in spite of the clear directions in Exhibit P1 judgment, trial court has relied on the medical evidence adduced at the pre-remand stage to hold the detailed enquiry under Order XXXII Rule 15 CPC to be unwarranted. As held by the Honourable Supreme Court in _**Kishore Samrite v. State of U.P and Others**_ [(2013) 2 SCC 398], judicial discipline and propriety are two significant facets of administration of justice and every court is obliged to adhere to these principles to ensure hierarchical discipline on the one hand and proper dispensation of justice on the other. Unfortunately, the learned Munsiff seems to have forgotten this cardinal principle, which is fundamental for proper dispensation of justice. 6. The learned Counsel for the petitioner raised a specific contention that the enquiry, based on which Exhibit P4 order was passed, is shrouded in secrecy, since, neither was the petitioner put on notice, nor the enquiry conducted in open court. In view of this allegation, a report was called for. Therein, the learned Munsiff has stated that pursuant to Exhibit P1 judgment, enquiry under Order XXXII Rule 15 CPC was conducted in the Chambers on 10.8.2016, and the respondent was found to be incapable of giving rational answers to the questions put to him, particularly with respect to the original suit. It is stated that the treatment details of the respondent produced during trial earlier and depositions of the Doctors were _**OP(C).3328/16**_ 6 perused. The medical records revealed that the respondent was treated for 'chronic psychosis' and is suffering from 40% mental disability. Based on these materials, the respondent was adjudged insane and his wife appointed as next friend. On a reading of the questions asked during enquiry, it is seen that, except to the question pertaining to his case, respondent had answered to all other questions in a rational manner. 7. As per Rule 15 of Order XXXII, the court is bound to conduct a proper enquiry, before finding a person to be incapable of protecting his interest. The legal position, as to how the enquiry is to be conducted, has been succinctly laid by a learned single Judge of this Court in _**C.L.Cleetus v. South Indian Bank Ltd.**_ [2007 (3) KHC 911], relevant portion of which reads as under; _“10......Rule 15 of Order XXXII contemplates an enquiry by the court also in respect of persons who are alleged to be incapable of protecting their interest on account of any mental infirmity. When the court is informed by affidavit or otherwise that a person has become insane or incapable by reason of mental infirmity and therefore is unable to protect his interest himself, it is obligatory that the court conducts a judicial enquiry with notice to the person concerned or any other person competent to represent on his behalf. In this case, no enquiry has been conducted by the court and the court has ignored the information furnished to the court through the_ _**OP(C).3328/16**_ 7 _affidavit in support of the present application at the threshold. The legal position in that regard is trite and is covered by various pronouncements including those cited at the Bar by Mr.Krishnanunni, such as Balakrishnan v. Kalliyani (AIR 1957 Kerala 51) and Syed Hassan Baffakki Thangal & others v. WP(C)N0.10869/06 Kalliath Thazha Chirutha & others (AIR 1988 Kerala 160). The ideal course would have been to direct the appearance of the 1st judgment-debtor allegedly under mental infirmity and the court conducts a voir dire by putting questions to him so as to verify whether there is any substance in the information furnished to the court by the self-styled next friend. The court also could have directed production of documentary evidence regarding the alleged mental illness of the 1st judgment-debtor, as yet another preliminary step in the enquiry under Rule 15 of Order XXXII. Without holding at least an initial enquiry as suggested above, the court should not have concluded that the 1st judgment-debtor is capable of protecting his interest in the litigation. If the initial enquiry reveals that there is no truth at all in the information conveyed to the court regarding the mental health or capacity of the petitioner, the court can very well dismiss the application. But if in that enquiry it is revealed that there is warrant for further enquiry, the court can hold such further enquiry deemed fit, i.e., by referring the alleged insane/infirm person to a medical board etc., before coming to final conclusions and granting the permission sought for.”_ 8. The enquiry under Order XXXIII Rule 15 is made for the purpose of finding whether a party to the suit is a person of unsound mind, or a person so mentally infirm that he is incapable of protecting his own interest. In the enquiry, the person concerned should _**OP(C).3328/16**_ 8 ordinarily be called and questioned by the Court. If the court entertains any doubt regarding the person's mental capacity after questioning, medical opinion should also be sought. The court should appoint a next friend, only on being fully satisfied that a party to the suit is incapable of protecting his interest. In the instant case, no such exercise was conducted by the trial court. Instead, learned Munsiff has relied on the findings and evidence at the pre-remand stage to declare the respondent as an insane person. Pertinently, Order XXXII Rule 15 do not empower the court to adjudge a person to be insane. What is contemplated is an enquiry for the purpose of finding whether the person is incapable of protecting his own interest by a reason of his/her mental infirmity. For the aforementioned reasons, the original petition is allowed and Exhibit P4 order is set aside. The trial court shall conduct the fresh enquiry under Order XXXII Rule 15, in strict compliance of the direction contained in Exhibit P1 judgment. **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**OP(C).3328/16**_ 9 ## **APPENDIX OF OP(C) 3328/2016** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMMON JUDGMENT OF SUB COURT, OTTAPALAM IN A.S.NO.56/2010 AND 52/2010 DATED 5.3.2016. EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT DATED 27.8.2016 IN SUPPORT OF I.A.NO.1082/2016 IN O.S.NO.84/2007 ON THE FILE OF THE MUNSIFFMAGISTRATE'S COURT, PATTAMBI. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN EXHIBIT P2 APPLICATION. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 15.10.2016 IN I.A.NO.1082/2016 INN O.S.NO.84/2007 PASSED BY MUNSIFF -MAGISTRATE COURT, PATTAMBI.