Rejitha Mol R and Renjitha Mol R v. Renjith Kumar M.R.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 30[TH] DAY OF JULY 2024 / 8TH SRAVANA, 1946 OP(C) NO. 1512 OF 2024** **AGAINST THE ORDER DATED 06.06.2024 IN OTHERS 45/2024 IN OS NO.1158 OF 2013 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **PETITIONERS/PLAINTIFFS:** **1 REJITHA MOL R AGED 43 YEARS W/O SREEKUMAR, KATTIPARAMBIL HOUSE, IYMANAM, KOTTAYAM DISTRICT, PIN - 686005 2 RENJITHA MOL R AGED 40 YEARS W/O GIREESH, PUTHUPARAMBIL CHERUVATHUR P.O., , KOTHAMANGALAM, ERNAKULAM, PIN - 686666 BY ADV M.R.MINI** ## **RESPONDENT/1ST DEFENDANT:** **RENJITH KUMAR M.R. AGED 38 YEARS S/O REGHUNATH, XVI/231, NEAR JANATHA CLINIC, VELIPARAMBIL MYTHRI NAGAR, VAIKOM ROAD, THEKKUMBHAGAM, THRIPUNITHURA., PIN – 682301** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** : 2 : O.P.(C). No.1512 of 2024 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **O.P.(C) No.1512 of 2024** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of July, 2024 ## **JUDGMENT** The petitioners have approached this Court challenging Exts.P11 and P13 orders. 2. The petitioners herein are the plaintiffs in the suit and the respondent is the 1[st] defendant. The 2[nd] defendant died pending suit. The suit is one for partition and for other consequential reliefs. It is the case of the petitioners that pending the suit, the 1[st] defendant/respondent herein had developed some mental disorder and was admitted in Idukki District Co-operative Hospital for treatment and the consultant Psychiatrist Dr.K.Sudarsan filed a report dated 03.09.2019 before the trial court describing his mental condition and stated that he needs prolonged medication and management in a sheltered environment. Thereupon the petitioners filed Ext.P3 application under Order XXXII Rule 2 and 15 of CPC seeking appointment of a court guardian to the 1[st] defendant for conducting the case. The trial court dismissed the said application by Ext.P5 as the 1[st] defendant has given rational answers to the question put to him by the court during enquiry and O.P.(C). No.1512 of 2024 : 3 : as he is fit and competent to defend the case, appointment of a guardian is not necessary. The petitioners sought review of the said order, which was also dismissed as per Ext.P7 order. Aggrieved by Exts.P5 and P7 Orders, petitioners approached this Court filing O.P.(C) No. 2677/2023, which was disposed of as per Ext.P8 judgment directing the trial court to issue necessary orders to enable examination of the 1[st] defendant by a senior most Psychiatrist attached to the District Hospital. In compliance with the directions in Ext.P8, the 1[st] defendant was subjected to medical examination. The Psychiatrist who examined the 1[st] defendant filed Ext.P9 interim report stating that he is not showing any behavioral changes and current mental examination status found to be normal and that he is having a sound mind at present to undergo court proceedings but also stated that for final conclusion, further evaluation and admission at Government Hospital is required. The doctor, who prepared the said report, was examined and the report was also marked. The trial court after considering the report and evidence of the doctor, as per Ext.P11 order found that the 1[st] defendant is fit for trial and posted the matter for evidence. Thereupon the petitioners filed an application seeking to review of Ext.P11 order, which was rejected by Ext.P13 order. It is in the O.P.(C). No.1512 of 2024 : 4 : said circumstances that the petitioners have approached this Court challenging Exts.P11 and P13 orders. 3. The learned counsel for the petitioners relying on the judgment in _**Gopakumar v. Madhusoodanan Nair & Another 2023 (6) KHC 63]**_ submits that the impugned orders issued by the trial court is not in accordance with the mandates of Order XXXII Rule 15 CPC. In the said judgment this Court held that the Court should adopt a pragmatic approach and if it is found necessary, call for further evidence including medical evidence, instead of jumping into a conclusion merely on the ground that some of the answers which were given by the person were found to be not convincing or rational and the procedure, then available, is to refer the parties to a Medical Board so as to obtain a report regarding any mental ailment, retardation or disorder or any impairment of mental ability to take a rational decision pertaining to his affairs or to protect his interest and in _**Gopakumar**_ 's case cited (Supra) the Court found that as no enquiry was conducted by either referring the petitioner therein to a Medical Board or for an expert evidence or by calling upon medical records, but simply jumped into a conclusion on examination of the petitioner by the court and found that he is not capable of protecting his interest : 5 : O.P.(C). No.1512 of 2024 simply for the reason that certain answers were found to be not rational. It is on the strength of the said judgment, the petitioners would contend that the findings in Exts.P11 and P13 are liable to be interfered with. 4. The petition originally filed as Ext.P3 – I.A. No.1/2022, was dismissed as per Ext.P5 holding that the 1[st] defendant, who is present in the court, in the enquiry gave rational answers and in the said circumstance the court was satisfied that the 1[st] defendant is fit and competent to defend the case and accordingly, the application was dismissed. But the said finding was interfered by this Court in Ext.P8 judgment and ordered that the 1[st] defendant should be examined by a Medical Board and further ordered that in order to save the time in constituting a Medical Board, the 1[st] defendant could be subjected to examination by the senior most Psychiatrist attached to the District Hospital, Ernakulam. Thereafter the 1[st] defendant was examined by a Psychiatrist attached to the District Hospital, Ernakulam and Ext.P9 report was submitted, wherein it is reported that the 1[st] defendant has a past history suggestive of Alcohol Dependence pattern and Alcohol induced behavioral changes affecting his functioning for which he had been taking treatments both as inpatient and outpatient from : 6 : O.P.(C). No.1512 of 2024 various Mental Health Establishments and it is also reported that the 1[st] defendant denied taking psychiatric medicine at present and that he is abstinent from drinking alcohol for past few months and he is not showing any major behavioral changes. In the said circumstances it is reported in Ext.P9 that in the current mental status examination he was found to be normal and the 1[st] defendant is having a sound mind at present to undergo court proceedings. It is also stated that for reaching a final conclusion he need to be admitted and evaluated in a Government Mental Health Establishment for adequate period of time. The Doctor was also examined and deposition of the Doctor is produced as Ext.P10. The court on the basis of the interaction with the 1[st] defendant in the enquiry conducted earlier and on the basis of the report of the Psychiatrist, by Ext.P11 order found that the 1[st] defendant is competent to protect his interest and defend the case and also found that he is not having any mental infirmity to defend his case and protect his interest and therefore, there is no necessity to appoint a guardian to protect his interest as he is very well capable of protecting his interest. 5. In the judgment in _**Gopakumar '**_ s case cited (Supra), the Court interfered with the same for the reason that the Court itself : 7 : O.P.(C). No.1512 of 2024 entered into a conclusion that the petitioner therein is not capable of protecting his interest for the reason that certain answers were found to be not rational and that the finding was entered without referring the petitioner therein for Medical Board for expert evidence. This Court also interfered with the earlier order passed as per Ext.P8 judgment for the reason that the 1[st] defendant was not examined by a qualified Psychiatrist attached to the District Hospital, Ernakulam. Pursuant to the directions issued by this Court, the petitioner was examined by Psychiatrist, General Hospital, Ernakulam, who has specifically reported that in the current mental status examination of the 1[st] defendant, he is found to be normal and is having a sound mind at present to undergo court proceedings. It is on the strength of the said report that the court entered into a finding as per Ext.P11 that the request of the petitioners herein for appointment of a guardian for the 1[st] defendant need not be allowed. It is settled law that the prime concern of the court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. I am of the view that the trial court has taken necessary steps to find out as to whether a guardian is to be appointed for the 1[st] defendant and in the interaction with him while conducting enquiry by the : 8 : O.P.(C). No.1512 of 2024 Court, as well as in the report of the Psychiatrist it is clearly stated that the 1[st] defendant is having sound mind at present to undergo court proceedings. In view of the above facts and circumstances, I find no reason to interfere with the orders impugned in this original petition and the same is accordingly dismissed. Sd/- **VIJU ABRAHAM JUDGE** sm/ O.P.(C). No.1512 of 2024 : 9 : ## **APPENDIX OF OP(C) 1512/2024** |**PETITIONER EXHIBITS**|| |---|---| |**Exhibit P1**|**TRUE COPY OF THE PLAINT DATED 28.10.2013**| ||**IN O.S.NO.1158 OF 2013 ON THE FILES OF**| ||**THE II ADDITIONAL MUNSIFF COURT,**| ||**ERNAKULAM.**| |**Exhibit P2**|**TRUE COPY OF THE WRITTEN STATEMENT DATED**| ||**15.10.2018 FILED BY THE 1ST DEFENDANT.**| |**Exhibit P3**|**TRUE COPY OF I.A.12022 DATED 22.06.2022**| ||**FILED UNDER ORDER XXXII RULE 2 AND 15**| ||**FILED IN O.S.NO.1158/2013.**| |**Exhibit P4**|**TRUE COPY OF THE REPORT DATED 03.09.2019**| ||**GIVEN BY DR.K.SUDARSAN.**| |**Exhibit P5**|**TRUE COPY OF THE ORDER DATED 23.01.2023**| ||**IN I.A. 1/2022 IN O.S.1158/2013**| |**Exhibit P6**|**TRUE COPY OF R.P.NO.9/2023 IN I.A.NO.**| ||**1/2022 DATED 22.02.2023.**| |**Exhibit P7**|**TRUE COPY OF THE ORDER DATED 07.07.2023**| ||**IN R.P.9/2023 IN I.A.1.2022**| |**Exhibit P8**|**TRUE COPY OF THE JUDGMENT DATED**| ||**30.01.2024 IN OP(C) 2677 OF 2023.**| |**Exhibit P9**|**TRUE COPY OF THE INTERIM REPORT DATED**| ||**21.02.2024 ISSUED BY DR. AJEESH P.R.,**| ||**CONSULTANT PSYCHIATRIST, GENERAL HOSPITAL**| ||**ERNAKULAM**| |**Exhibit P10**|**TYPED COPY OF THE ORAL EVIDENCE GIVEN BY**| ||**DR. AJEESH P.R., CONSULTANT PSYCHIATRIST,**| ||**GENERAL HOSPITAL ERNAKULAM ALONG WITH**| ||**ORIGINAL**| |**Exhibit P11**|**TYPED COPY OF ORDER DATED 06.04.2024 IN**| ||**O.S. NO. 1158/2013 ON THE FILES OF THE II**| ||**ADDITIONAL MUNSIFF COURT, ERNAKULAM ALONG**| ||**WITH ORIGINAL**| |**Exhibit P12**|**TRUE COPY OF REVIEW PETITION NO.45/2024**| ||**DATED 22.05.2024**| |**Exhibit P13**|**TYPED COPY OF ORDER DATED 06.06.2024 IN**| ||**REVIEW PETITION NO.45/2024 IN O.S. NO.**| ||**1158/2013 ON THE FILES OF THE II**| ||**ADDITIONAL MUNSIFF COURT, ERNAKULAM ALONG**| ||**WITH ORIGINAL**|