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O.L Kapoor v. Ramesh Chander Nijhawan And Others
Structured Summary of the Opinion
Factual and Procedural Background
The matter arises from an application under Order 41, Rule 2 read with Section 151 of the Civil Procedure Code (CPC) in which the applicant sought permission to add a new ground (proposed Ground No. 26) to his memorandum of appeal. The proposed ground alleged that the respondent, Shri Ramesh Chander Nijhawan, was of unsound mind and therefore incapable of suing without the appointment of a next friend, rendering earlier orders dated 30-11-1970 (by the Additional Rent Controller) and 25-2-1972 (by the Rent Control Tribunal) nullities.
The applicant also sought permission to adduce evidence to support the newly proposed ground. The respondent opposed the application. The Court considered submissions for both sides, referred to provisions of Order 32 (esp. Rules 2 and 15) of the CPC, and several precedents. The Court ultimately dismissed the application with costs.
Legal Issues Presented
- Whether the applicant may be permitted at this stage to add a ground to the memorandum of appeal alleging that the respondent was of unsound mind when instituting the eviction proceedings and that the orders in favour of the respondent are therefore nullities.
- Whether the applicant may be allowed to adduce additional evidence in support of that newly proposed ground at this stage.
- Whether failure to invoke the procedure prescribed by Order 32, Rule 2 of the CPC (to apply to have the plaint/petition taken off the file when instituted by a person incapable of suing) precludes raising the objection later and renders the proceedings void or merely irregular and waivable.
Arguments of the Parties
Applicant's Arguments
- The applicant sought to add a ground asserting that the respondent was of unsound mind and therefore incapable of suing without a next friend; consequently, the orders under challenge were submitted to be nullities and of no force or effect.
- Counsel for the applicant relied on a medical certificate dated 21 April 1972 issued by Dr. V. Bhushan, Psychiatrist, Hospital for Mental Diseases, Shahdra, indicating the respondent was admitted on 10 April 1972 as a voluntary boarder and discharged on 21 April 1972, contending this showed unsoundness of mind.
- The applicant pointed to the fact that the Court (on application under Order 32, Rule 15 read with Section 151 CPC — C.M. 440-J of 1972) appointed the respondent's father as guardian-ad-litem, arguing that the father's consent to act as guardian-ad-litem indicated the respondent's unsoundness of mind.
- On this basis, the applicant contended that the proceedings before the Rent Controller and Rent Control Tribunal were vitiated by non-compliance with mandatory provisions of Order 32 (Rules 2 and 15) and that the respondent should not be allowed to take advantage of orders passed in his favour.
Respondent's Arguments
- The respondent opposed the application as not maintainable, contending the matter raised involves disputed facts (events of 1966 and earlier) and production of additional evidence at such a belated stage should not be permitted.
- It was argued that the respondent had personally deposed in the original proceedings and was cross-examined, demonstrating capacity to protect his interests and not showing signs of unsoundness of mind at that time.
- The respondent's counsel characterized the present application as mala fide and emphasized that answers given during cross-examination were rational and indicative of sound mind during the trial of the petition.
- Admitted, however, that the respondent was at present temporarily suffering from mental depression and therefore unable to personally contest the appeal, which led to appointment of his father as guardian-ad-litem; the medical certificate was presented as evidence of a temporary 11-day hospitalisation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sulaiman Pir Mohammad v. Abdul Shakoor, AIR 1940 Nag 99 | Order 32, Rule 2: If the defendant does not adopt the procedure of applying to have the plaint taken off the file when instituted by/for a minor, the defendant cannot later maintain the proceedings were null and void because the plaintiff was a minor. | The Court relied on this principle to hold that failure to invoke the procedure under Rule 2 amounts to waiver and the defendant/applicant cannot thereafter contend proceedings were void. |
| Mahasai Parbhu Dayal v. Man Singh, AIR 1962 All 512 | Decree against a minor is void ab initio if no guardian was appointed; the position regarding decree against a person of unsound mind is similar. | The Court held this authority was not helpful to the applicant because the facts differed: the respondent had appeared and been cross-examined, and there was no showing of prejudice as in that case. |
| Narpat Raj v. Babulal, AIR 1964 Raj 92 | Where a minor sues except through a next friend and a defendant does not object and the suit proceeds to trial, the defect is a mere irregularity which can be waived by the defendant. | The Court relied on this decision (which itself relied on Sulaiman Pir Mohammad and Gulabchand v. Fulchand) to support the view that the irregularity can be waived if not timely raised. |
| Gulabchand v. Fulchand, AIR 1959 Bom 232 | Authority cited in relation to the principle that defects in suing without a next friend may amount to irregularity waivable by the defendant. | Relied upon (through Narpat Raj) as supporting precedent for the proposition that non-compliance with Order 32 procedure can be treated as a waivable irregularity. |
| Kanhaiya Lal v. Mr. Thomas Skinner, AIR 1936 All 806 | Where a suit is filed by or against a minor without a next friend, the Court should see whether any prejudice was caused to any party and remove the grievance. | The Court noted this authority to show that non-compliance does not necessarily prejudice the person alleged to be incapable; applied to conclude no prejudice was shown here and the irregularity did not vitiate the decree. |
Court's Reasoning and Analysis
The Court commenced by citing and explaining the relevant provisions of Order 32 of the CPC, particularly Rule 2 (procedure where a suit is instituted by/on behalf of a minor without a next friend), Rule 4 (who may act as next friend or be appointed guardian) and Rule 15 (extension of Rules 1–14 to persons adjudged of unsound mind or found by the Court to be incapable of protecting their interests).
The Court reasoned as follows:
- Rule 15 extends the protections of Rules 1–14 to persons of unsound mind or found by the Court to be incapable of protecting their interests. Even if the respondent were of unsound mind when he filed the eviction petition, the prescribed remedy under Order 32 was available to the applicant.
- Under sub-rule (1) of Rule 2 of Order 32, the applicant could have applied to the Rent Controller to have the petition taken off the file and sought costs from the pleader who presented it; on such an application the Court would give notice and make such order as it thought fit.
- The applicant did not invoke the procedure under Rule 2 when it was available. The Court held that failure to adopt the prescribed procedure amounted at best to an irregularity which the defendant/applicant could waive; by not moving under Rule 2 the applicant was deemed to have waived the objection.
- The Court examined the factual record: the respondent had appeared as his own witness and undergone lengthy cross-examination during which he displayed no signs of mental infirmity; the applicant had evidently accepted his capacity at that time.
- The Court found no basis for inferring, from the medical certificate showing the respondent was hospitalised for a limited period in April 1972, that the respondent was of unsound mind at the relevant earlier times when the petition and appeal were heard and disposed of.
- The applicant had not demonstrated that he suffered prejudice in the trial of the petition for eviction even assuming arguendo that the respondent had a mental infirmity while the petition was pending.
- The Court reviewed authorities relied upon by the parties. It distinguished Mahasai Parbhu Dayal (All) as factually different; and it relied on the line of decisions (including Sulaiman Pir Mohammad, Narpat Raj, Gulabchand and Kanhaiya Lal) establishing that failure to object under Order 32 can render the defect a waivable irregularity rather than an absolute nullity.
On that basis the Court concluded that the applicant's proposed ground raised a matter of fact which should have been addressed by the procedure in Rule 2 and, having not availed that route, the applicant could not convert the omission into a ground to be added at this stage.
Holding and Implications
Holding: The Court found the application to add the proposed ground and to adduce additional evidence to be without merit and DISMISSED WITH COSTS.
Implications:
- The immediate effect is that the applicant is not permitted to add Ground No. 26 alleging the respondent's unsoundness of mind nor to adduce additional evidence in support of that ground in the appeal.
- The Court treated the alleged defect (institution of proceedings without a next friend or in presence of alleged unsoundness of mind) as at best an irregularity which could have been waived by the applicant by not invoking the remedy under Order 32, Rule 2; no relief was granted to set aside the earlier orders on that basis.
- The opinion does not purport to create a new precedent beyond applying and following existing authorities that a defendant's failure to invoke the procedure under Order 32 may amount to waiver. The Court explicitly distinguished an authority (Mahasai Parbhu Dayal) relied on by the applicant on factual grounds.
This summary is strictly confined to the statements and materials contained in the provided opinion. No information has been added beyond the text of the opinion.
1. In this application filed under Order 41, Rule 2 read with Section 151 of the CPC the applicant has prayed that he be permitted to add the following ground as ground No. 26 to the grounds taken by him in his memorandum of appeal:—
“Because Shri Ramesh Chander Nijhawan was of unsound mind and by the reason of unsoundness of mind and mental infirmity was incapable of suing and protecting his interest when suing without the appointment of a next friend and as such the order D/- 30-11-70 passed by Shri K.B Andley, Additional Rent Controller is a nullity and is of no force and effect. Similarly the order D/- 25-2-1972, passed by Shri G.C Jain, Rent Control Tribunal is nullity and of no force and effect.”
2. It is further prayed by the applicant that he be permitted to adduce evidence in support of the contention raised in ground of appeal proposed to be added by this application.
3. The respondent has opposed this application stating that the same is not maintainable in that the question sought to be raised being one of fact involving production of additional evidence on disputed questions of fact as to the events of 1966 and even prior thereto cannot be permitted to be pleaded at this belated stage; that the respondent during the proceedings before the Court below had deposed before the Court and was cross-examined which by itself would show that he was capable of taking care of his own interests and was not either of unsound mind or otherwise suffering from any mental infirmity. Mr. Gian Singh Vohra, the learned counsel appearing for the applicant, vehemently urged that it is amply borne out from certificate dated the 21st April, 1972 filed by the respondent along with reply to C.M 348 of 1972, issued by Dr. V. Bhushan, Psychiatrist, Hospital for Mental Diseases, Shahdra, to the effect that respondent, Ramesh Chander Nijhawan, was admitted in the said Hospital on 10th April, 1972, as a voluntary Boarder and that he was discharged from the said Hospital on the 21st April, 1972, the date on which the certificate was issued, that the respondent was of unsound mind. Not only this, the learned counsel further submitted that on application under Order 32, Rule 15, read with Section 151 of the CPC (C.M 440-J of 1972) this Court appointed Shri Chaman Lal Nijhawan, father of the respondent, as his guardian-ad-litem on the statement of Shri Chaman Lal Nijhawan to the effect that he had no objection to his being appointed as guardian-ad-litem of his son, respondent in the present appeal. The learned counsel, therefore, submitted that if it was not a fact that the respondent was of unsound mind then Shri Chaman Lal Nijhawan, father of the respondent, would not have consented to be appointed as guardian-adlitem for the respondent. The above facts, the learned counsel submitted, clearly point out that respondent is of unsound mind and since the petition for eviction of the appellant was filed by the respondent in the absence of his next friend, the entire proceedings taken in the court of Rent Controller as also before the Rent Control Tribunal are vitiated being in flagrant disregard of the mandatory provisions of Order 32, Rules 2 and 15 of the CPC. If that is so, the learned counsel submitted, the respondent cannot take advantage of the order passed by the Rent Controller and the Rent Control Tribunal in his favour ordering the ejectment of the petitioner from the premises in dispute.
4. Mrs. Shyamla Pappu, the learned counsel for the respondent, submitted that the application has been filed mala fide and that at the relevant time when the petition for eviction of the applicant was filed, the respondent was of perfect sound mind which is borne out from the fact that the respondent appeared as his own witness in the petition and did not betray any signs of unsoundness of mind. Had the respondent exhibited any unsoundness of the mind, it was urged the same would have easily been detected and discerned during the course of cross-examination conducted by the learned counsel for the tenant. The very fact, the learned counsel submitted, that answers given by the respondents to the questions put in cross-examination were rational which an ordinary prudent man would have answered, negatives the allegation made in the present application. Mrs. Pappu, however, admitted that at present the respondent was temporarily suffering from mental depression and was not in a position to take care of his interests and contest the present proceedings personally and it was under these circumstances that his father, Shri Chaman Lal Nijhawan, had been appointed as guardian-ad-litem in the present appeal. To substantiate her contention that the respondent has only recently suffered some mental depression, the learned counsel adverting to medical certificate dated the 21st April, 1972, referred to above, submitted that it was for a temporary period of 11 days that the respondent remained in the Hospital for Mental Diseases otherwise the medical authorities would not have discharged him from the Hospital.
5. With a view to appreciate the respective contentions of the parties, it would be appropriate to refer to the relevant provisions of Order 32 of the CPC, Rule 2 of Order 32 is as follows:—
“2 (1). Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.”
6. Rule 4 of Order 32 lays down as to who may act as next friend or be appointed guardian for the suit. Rule 15 of the said Order 32 of the CPC prescribes application of rules to persons of unsound mind. The said Rule is as follows:—
“The provisions contained in Rules 1 to 14 so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged ate found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.”
7. From a perusal of the abovequoted Rules, there can be no doubt that the provisions contained in Rules 1 to 14 of Order 32 of the CPC are to be extended to persons adjudged to be of unsound mind and also to person who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. Even if it be assumed for the sake of argument that the respondent was of unsound mind at the time when he filed the petition for eviction of the applicant from the premises in dispute, the procedure available to the applicant was as prescribed under Rule 2 of Order 32. The applicant according to sub-rule (1) of Rule 2 of Order 32 could have applied to the Rent Controller to take the petition off the file and claim costs to be paid by the pleader or other person by whom the petition was presented, alleging that the respondent was of unsound mind and the petition has been filed without his next friend. On the filing of such an application, the Court was required to give notice thereof to such person, and the Court, after hearing his objections, if any, was to pass such order in the matter as it thought fit. The applicant having not taken recourse to the procedure prescribed under Rule 2 of Order 32, cannot now contend that he be permitted to take the proposed additional ground in the grounds of appeal as at best in not filing the petition through a next friend, amounted to an irregularity which, for want of an application on the part of the applicant by way of making a prayer to the Court to have the petition taken off the file, was deemed to have been waived.
8. In Sulaiman Pir Mohammad v. Abdul Shakoor, AIR 1940 Nag 99, the Court observed, at page 102,
“Order 32, Rule 2 of the CPC, provides that where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file. If this procedure is not adopted, then the defendant cannot be heard afterwards to say that the proceedings were null and void because the plaintiff was a minor.”
9. The learned counsel for the applicant relied upon Mahasai Parbhu Dayal v. Man Singh, AIR 1962 All 512, in which it was observed that a decree against a minor was void ab initio and a nullity, if it was passed in a suit in which no guardian of the minor was appointed and that the position regarding a decree against a person of unsound mind is the same as that against minor. The learned counsel urged on the basis of the above-cited authority that the decree passed in favour of the respondent because of his being of unsound mind is void ab initio and the respondent cannot take advantage of the said decree.
10. I am afraid, no assistance can be derived by the applicant from the above-cited Allahabad High Court authority, as in the said case the minor was prejudiced on account of the decree passed against him when admittedly, he, being a minor, could not protect his interest in the suit and the minor having not been sued through a next friend, it was held that the decree was void abinitio. But in the instant case the facts and circumstances are different. As already observed in an earlier part of the judgment, the respondent had appeared as his own witness and was subjected to a lengthy cross-examination during which he did not exhibit any signs of mental infirmity and the applicant was obviously satisfied with the statement made by the respondent. Now that the decision in the case has gone against the applicant he cannot make a grievance on the basis of information which he derived from the medical certificate referred to earlier, to the effect that the respondent remained in the Hospital for Mental Diseases for a period of ten days, and urge that it should be presumed that the respondent was suffering from mental infirmity even at the time when the petition was heard and disposed of by the Rent Controller and again during the period when the appeal was heard and disposed of by the Rent Control Tribunal. There is no basis for drawing such an inference. Apart from this, the applicant had not shown that he had been prejudiced in the trial of the petition for eviction, even if it be assumed for the sake of argument that the respondent was suffering from mental infirmity during the period the petition was pending.
11. In Narpat Raj v. Babulal, AIR 1964 Raj 92, a Division Bench of the Court relying on Sulaiman Pir Mohammad's case, AIR 1940 Nag 99 (supra) and Gulabchand v. Fulchand, AIR 1959 Bom 232, observed,
“………that where a minor brings a suit except through a next friend and it proceeds to trial and the decree is passed therein without the defendant raising any objection to the procedure adopted, then such a defect amounts to a mere irregularity which can be waived by the defendant.”
12. The allegation of the applicant is that he did not know about the mental infirmity of the respondent at the time the petition was pending. Be that as it may, in not filing the petition for ejectment through a next friend, all that can be said is that an irregularity was committed which was capable of being waived by the applicant and the mere irregularity does not vitiate the decree.
13. In Kanhaiya Lal v. Mr. Thomas Skinner, AIR 1936 All 806, it was observed that in a suit which is filed by or against the minor without a next friend all that the Court had to see was that if any prejudice had been caused to any particular party and to see that the grievance was removed.
14. In that case a decree was passed in favour of the lunatic and the Court dealing with that aspect of the matter, observed that non-compliance with the procedure prescribed under Order 32, Rule 2, did not prejudice the interest of the lunatic in any way by the aforesaid irregularity.
15. For the reasons stated above the application is without merit and is dismissed with costs.
16. Application dismissed.
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