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Kasturibai And Others v. Anguri Chaudhary .
Factual and Procedural Background
The plaintiff-respondent instituted Civil Suit No. 2-A of 1993 in the Court of the Additional District Judge, Shahdol, Madhya Pradesh, seeking partition, possession, and rendition of accounts over certain immovable properties. Appellant 1, aged 87 years, was one of the defendants. Alleging that she had become forgetful and incapable of instructing counsel, the respondent moved an application under Order 32 Rule 15 of the Code of Civil Procedure, 1908 (CPC), requesting that Appellant 1 be produced for medical inquiry and, if necessary, that a guardian be appointed to defend her.
On 3-11-1998 the trial court dismissed that application (IA No. 17). The respondent challenged the dismissal in Civil Revision No. 2761 of 1998 before a Single Judge of the Madhya Pradesh High Court, who on 5-5-1999 set aside the trial court’s order and directed the appointment of a guardian.
The appellants then filed an application under Section 151 CPC to recall the Single Judge’s order, contending that no notice had been served on them. Instead of being listed before the same Single Judge, the application was placed before a Division Bench, which treated it as an intra-court appeal (MCC No. 482 of 1999) and dismissed it on 11-8-2000.
The present appeal challenges the Division Bench order as well as, consequentially, the underlying Single Judge order.
Legal Issues Presented
- Whether an application to recall an order passed in revisional jurisdiction could be treated by the High Court Division Bench as an intra-court appeal.
- Whether, under Order 32 Rule 15 CPC, a court may appoint a guardian for a party alleged to be mentally infirm without first conducting the mandatory inquiry contemplated by that rule.
Arguments of the Parties
Appellants’ Arguments
- The Single Judge lacked jurisdiction to order appointment of a guardian without directing or conducting the inquiry required by Order 32 Rule 15 CPC.
- The Division Bench erred in treating the recall application as an appeal; no intra-court appeal lies against an order passed in the High Court’s revisional jurisdiction.
Respondent’s Arguments
- The present appeal is not maintainable because the appellants did not directly challenge the Single Judge’s order dated 5-5-1999.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
After hearing counsel, the Court found two major errors:
- Error by the Division Bench: The Division Bench had no competence to entertain what was essentially an application for recall of a revisional order. Revisional orders are not subject to intra-court appeals within the High Court. Consequently, treating the application as an appeal constituted a “manifest error.”
- Error by the Single Judge: A plain reading of Order 32 Rule 15 CPC allows appointment of a guardian only after (i) the person has been adjudged of unsound mind, or (ii) the court, “on enquiry,” finds that because of mental infirmity the person cannot protect his or her interests. The respondent never claimed that Appellant 1 was of unsound mind; rather, the respondent had requested an inquiry. Because no such inquiry was undertaken, the Single Judge exceeded jurisdiction in directly appointing a guardian. The proper course would have been to remit the matter to the trial court for the requisite inquiry.
Because both the Division Bench order and the Single Judge order suffered from these jurisdictional defects, the Court held that they could not stand.
Holding and Implications
APPEAL ALLOWED; IMPUGNED JUDGMENTS SET ASIDE.
The case is remitted to the trial court to conduct an inquiry under Order 32 Rule 15 CPC to determine whether Appellant 1 is incapable of protecting her interests due to mental infirmity, and to proceed thereafter in accordance with law. The decision clarifies that:
- No intra-court appeal lies from a High Court order passed in revisional jurisdiction.
- Courts must strictly comply with the inquiry requirement of Order 32 Rule 15 CPC before appointing a guardian for an allegedly mentally infirm party.
No costs were awarded. The ruling primarily affects the parties to the suit and reinforces procedural safeguards; it does not establish new precedent but reaffirms existing statutory requirements.
Order
1. This appeal is directed against a judgment and order dated 11-8-2000 passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur in MCC No. 482 of 1999 whereby and whereunder it refused to entertain an application filed by the appellants herein purporting to be under Section 151 of the Code of Civil Procedure, 1908 (for short “CPC”) for recalling of an order passed by a learned Single Judge of the said Court dated 5-5-1999 passed in Civil Revision No. 2761 of 1998 which in turn arose out of an order dated 3-11-1998 passed by the Additional District Judge, Shahdol, Madhya Pradesh in Civil Suit No. 2-A of 1993 dismissing an application filed by the respondent herein under Order 32 Rule 15 CPC.
2. The plaintiff-respondent filed a suit against the appellants herein for partition of certain immovable properties. Appellant 1 herein at the relevant point of time was aged 87. Alleging inter alia that she had lost her ability to understand and further is not capable to give instructions to her lawyer or anybody else relating to the said suit, a prayer was made by the respondent herein that she be summoned in the court so as to enable the court to inquire about her state of mind and upon medical examination, if necessary, a guardian be appointed for defending her in the suit.
3. The learned trial Judge by reason of the order dated 3-11-1998 dismissed the said application stating:
“… But in the verification para of her affidavit Anguri Chaudhary has verified paras 1-3 and 4 of the affidavit on the basis of her personal knowledge and para 2 on the basis of knowledge received from her relations and known persons. But Anguri Chaudhary has neither mentioned the names of her relations and known persons nor disclosed the time and place of receiving the knowledge from them. No explanation has been given for inordinate delay of 49 months in bringing the fact of forged signature of Kasturibai on her written statement filed on 31-8-1994. In this case Kasturibai is Defendant 1 but in IA No. 17 and affidavit in support she has been referred to as ‘Defendant 3’ and, ‘Defendant 3 Kasturibai’. The affidavit of Anguribai filed in support of IA No. 17 is not reliable in these circumstances. Therefore IA No. 17 is dismissed.”
4. Questioning the said order, the respondent herein filed a revision application in terms of Section 115 CPC before the High Court. The said application was marked as Civil Revision No. 2761 of 1998. The High Court by reason of its order dated 5-5-1999 allowed the revision application directing:
“… The applicant/plaintiff has filed the instant civil suit against the non-applicant/defendants for partition, possession and rendition of accounts. Non-applicant 1 is an old lady of 87 years of age and she has developed forgetfulness. Therefore, the applicant had made an application under Order 32 Rule 15 CPC, for appointment of a guardian for defending her in the suit. The appointment of guardian would not cause any prejudice to either parties. The trial court acted with material irregularity in rejecting the application of the applicant under Order 32 Rule 15 CPC. The impugned order, therefore cannot be sustained. Accordingly, it is set aside and in the result, the revision succeeds and is allowed.”
5. The appellants herein filed an application for recalling of the said order, inter alia, on the ground that notices upon them were not served. Curiously enough, the said application, instead of being placed before the learned Single Judge who had disposed of the civil revision application, was placed before a Division Bench. The Division Bench considered the said application to be an appeal against the order of the learned Single Judge and dismissed the same by reason of the impugned order.
6. Shri Gaurav Jain, the learned counsel appearing on behalf of the appellants has raised a short question in support of this appeal. The learned counsel would urge that having regard to the provisions contained in Order 32 Rule 15 CPC the learned Single Judge could not have directed that a guardian be appointed for the respondent herein although the learned trial court did not make an inquiry in that behalf as is required in terms of Order 32 Rule 15 CPC.
7. Shri B.S Banthia, the learned counsel appearing on behalf of the respondent, on the other hand, would contend that as the appellants herein had not questioned in this appeal the aforementioned order dated 5-5-1999, this appeal is not maintainable.
8. Having heard the learned counsel for the parties, we are of the opinion that the Division Bench of the High Court committed a manifest error in treating the application for recalling, as an appeal against the order passed by the learned Single Judge. No intra-court appeal lay before a Division Bench against the order dated 5-5-1999 as the same was passed by the High Court in exercise of its revisional jurisdiction.
9. Shri Jain, therefore, has rightly submitted that the order of the learned Single Judge must be held to have merged with the order of the Division Bench.
10. Order 32 Rule 15 CPC reads thus:
“15. Rules 1 to 14 (except Rule 2-A) to apply to persons of unsound mind.—Rules 1 to 14 (except Rule 2-A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.”
11. On a bare perusal of the said provision, it is evident that the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged but is found by the court on inquiry to be incapable of protecting his or her interest when suing or being sued by reason of any mental infirmity, an appropriate order thereunder can be passed. The respondent did not contend that Appellant 1 herein is of unsound mind. As noticed hereinbefore, the respondent herself had filed an application before the trial court for holding an inquiry to the effect that she suffers from mental infirmity.
12. The learned trial court refused to do the same and in that view of the matter the High Court, in our opinion, while setting aside the said order could only issue a direction directing the learned trial Judge to hold an inquiry so as to enable it to arrive at a finding as to whether the respondent herein was incapable of protecting her interest by reason of any mental infirmity or not. As no such inquiry was held, there cannot be any doubt whatsoever that the learned Single Judge committed a jurisdictional error in passing the impugned judgment which, the Division Bench as noticed hereinbefore upheld.
13. For the reasons aforementioned, the impugned judgments are set aside and the matter is directed to be remitted to the learned trial Judge for consideration of the matter afresh strictly in terms of Order 32 Rule 15 of the Code of Civil Procedure as also in the light of the observations made hereinbefore.
14. This appeal is, thus, allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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