JUDGMENT Tarun Agarwala, J.
1. Heard Sri B.N.Agarwal the learned Counsel for the petitioner and Sri S.C. Dwivedi, the learned Counsel for respondent No. 1.
2. The petitioner is the plaintiff and has filed a suit praying for the specific performance of an agreement and in the alternative for the refund of the money advanced to the defendant. The defendant appeared before the trial court and moved an application for an appointment of a guardian stating therein that he was of unsound mind and was unable to contest the suit. In support of his application, the defendant filed medical prescriptions as documentary evidence. The petitioner filed his objection stating therein that the defendant was of sound mind and that the application of the defendant was liable to be rejected. The trial court allowed the application of the defendant and permitted the defendant to pursue the litigation through a guardian. The plaintiff filed a revision which was rejected, Consequently, the present application under Article 227 of the Constitution.
3. The submission of the learned Counsel for the petitioner is that no inquiry was conducted by the trial court nor was there any proof of the fact that the defendant was of unsound mind nor there was any material before the trial court to come to a conclusion that the defendant was of unsound mind. It was urged that before coming to a conclusion, an inquiry was required to be conducted by the court. It was further submitted that the trial court could not have come to a conclusion that the defendant was of unsound mind on the basis of the prescriptions filed by the defendant. The trial court ought to have made an inquiry by examining the doctor who was treating the defendant or should have directed the defendant to produce a certificate from the doctor. The prescriptions filed by the defendant certificate from the doctor. The prescriptions filed by the defendant does not prove that the defendant was of unsound mind.
4. The procedure for appointing a guardian for a person of unsound mind is provided in Order 32 Rule 15 of the C.P.C., which reads as under:
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, or protecting their interest when suing or being sued.
5. From a perusal of the aforesaid, it is clear, that the Court is required to hold an inquiry to find out that by reason of any mental infirmity, the defendant is unable to protect his interest when being sued and therefore, it is necessary for the Court to come to a conclusion that the defendant is of unsound mind and is unable to protect his interest. From a perusal of the impugned order, it is clear that the trial court had not made any inquiry and had permitted the defendant to contest the suit through a guardian on the basis of medical prescriptions, which in the opinion of the Court, is insufficient to come to the conclusion that the defendant was of unsound mind. The Court was required to hold an inquiry and come to a conclusion that the defendant was of unsound mind and was incapable of protecting his interest.
6. In Prabhat Sharma and Anr. v. Hari Shankar Srivastava and Ors. 1988 (1)ARC 285, this Court held that the Court must hold a judicial inquiry and come to a definite conclusion that the person was incapable of protecting his interest by reason of unsoundness of mind or mental infirmity. The Court further held that the inquiry should consist not only the examination of the witnesses produced by either parties but also the examination of the person concerned either in open court or in the chamber of the presiding officer and that the opinion of/a doctor was also a relevant piece of evidence. In Tirtha Pradhan and Ors. v. Balabhadra Pradhan and Anr.
, the Court held that failure to conduct an inquiry into the alleged mental infirmity of a person vitiates the entire order.
7. In view of the aforesaid, the impugned orders cannot be sustained and are quashed. The writ petition is allowed. The matter is remitted back to the trial court to re-decide the application of the defendant after holding an inquiry in accordance with the provisions of Order 32, Rule 15 of the C.P.C