Harilal, J.
O.P.(F.C.) No.336/14 and Mat.Appeal No.123/13 are filed challenging the same order passed in I.A.No.520/12 in O.P.No.312/12 on the file of Family court, Irinjalakkuda. In the original petition, it is stated that, initially the petitioner challenged the said order under Article 227 of the Constitution of India. The Registry noted that such an original petition was not maintainable and that the remedy of the petitioner was to file an appeal and consequently the original petition was rejected. Therefore, the petitioner filed the above appeal as Mat.Appeal No.123/13. When the Mat.appeal came up for consideration, the learned counsel for the respondent raised a contention that the impugned order is not an appealable order. Therefore, the above original petition is also filed in addition to the Mat.appeal, challenging the same order. In short, the petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India and Section 19(1) of the Family court Act 1984 at a time, challenging the very same order. In short, simultaneous proceedings are initiated challenging the very same order.
2. Prima facie we find that the procedure adopted by the petitioner/the appellant in the above proceedings are not satisfactory. The petitioner should not have resorted to both remedies under different jurisdiction to challenge the same order, merely on the reason that when the Mat.appeal came up for consideration, the respondent challenged the maintainability of the Mat.appeal. It is pertinent to note that no order has been passed so far as regards the maintainability of the original petition or Mat.appeal.
3. Going by the impugned order under challenge, we find that the above appeal and the original petition were filed challenging the order passed in I.A.No.520/12 in O.P.No.312/12. The above interlocutory application was filed under Order 32 Rules 1 r/w 15 of Code of Civil Procedure for appointing a guardian. Going by the impugned order under challenge, we further find that the above order is an order passed on the interlocutory application. But, on a close consideration of the question in controversy decided in the impugned order, we find that the said order cannot be treated as an interlocutory order as the said order determined the rights of the parties with respect to the question in controversy, finally. Therefore, the said order can be deemed to be a final order which determines the right of the parties as regards the question in controversy involved in the interlocutory application. Consequently, we find that, considering the nature of the order under challenge, an appeal under section 19(1) of the Family court Act is maintainable and would lie against the impugned order under challenge. Therefore, we dismiss O.P.(F.C.)No.336/14, as the same is not maintainable and Mat.appeal No.123/13 is taken up for consideration.
4. The appellant in Mat.appeal No.123/13 is the petitioner in O.P.No.312/12 as well as the petitioner in I.A.No.520/12. The above original petition was filed under section 18 of the Indian Divorce Act to annul the marriage between the petitioner and the respondent by a decree of nullity. I.A.No.520/12 was filed under Order 32 Rule 1 r/w Rule 15 of CPC for appointing a guardian. Another I.A.No.1108/12 was also filed for directing the respondent to undergo Medical examination to ascertain her mental status. This Mat.Appeal is filed mainly on the ground that the court below has dismissed the said I.A.No.520/12 without following the procedure contemplated under Order 32 Rules 1 to 15 of CPC. The legality and propriety of the impugned order is under challenge in this Mat.appeal.
5. The learned counsel for the appellant advanced arguments challenging the impugned order contending that the said order was passed in contravention to the procedure contemplated under Order 32 Rule 1 and Rule 15 of CPC. Though the appellant has produced medical authoritative report - Annexure B and Annexure C discharge summary, which would evidently show the insanity of the respondent herein, the court below has not considered the said documents while passing the impugned order under challenge. In short, the contention is that no adjudication had been conducted as provided under Rule 15 of Order 32 of CPC.
6. Per contra, the learned counsel for the respondents advanced arguments to justify the impugned order under challenge. The learned counsel contends that the court below has conducted an enquiry as contemplated under Rule 15 of Order 32 of CPC and thereafter on the satisfaction of the mental capacity of the 1st respondent, the court below has passed the impugned order under challenge. Thus there is no procedural irregularity in passing the said order. It is also contended that the appellant has failed to adduce evidence to show the alleged insanity of the respondent, so as to appoint a guardian as provided under Order 32 Rule 1 of CPC.
7. In view of the rival contentions raised at the bar, the short question that arises for consideration is whether the court below can be justified in passing the impugned order. Going by the procedure contemplated under Order 32 Rules 1 to 15 of CPC, it could be seen that, a specific procedure is provided to appoint a guardian for an insane person after ascertaining the mental capacity of such person. Rule 15 provides that : “Rules 1 to 14 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. The above provision provides the adjudication process to find out mental capability of the person when suing or being sued”. The said procedure can be adopted before or during the pendency of the suit. In the instant case, during the pendency of the original petition, the petitioner has filed such a petition for ascertaining the mental soundness of the respondent. So, it was incumbent upon the court below to adjudicate the issue after considering the evidence adduced by both the parties.
8. Going by the order, prima facie it is seen that, the said order is cryptic as well as laconic. Though it is stated that, an enquiry had been conducted by examining the respondent in court to ascertain her capability to understand matters rationally, the manner in which such enquiry was conducted is not specified in the impugned order under challenge. So, we are unable to sit in judgment, over the manner in which enquiry said to have been conducted or the reasons under which the interlocutory application was dismissed. We have also taken note of another fact that in the impugned order, nothing stated about the averments in the interlocutory application or in the objection filed by the petitioner and respondents respectively. Being a judicial order, appealable under Section 19 of the Family court Act, the court below should have narrated the grounds or circumstances under which the petitioner has sought for enquiry to ascertain the capability of the respondent to understand the matter rationally. So also, the court below should have narrated the contentions in the objection filed by the respondent against the said interlocutory application. In short, the impugned order is passed without assigning any reason or providing the manner in which the court below conducted the enquiry contemplated under Order 32 of the CPC.
9. Consequently, the impugned order is liable to be set aside and we do so. The matter is remitted back to the court below for fresh consideration. The court below is directed to re store I.A.No.520/12 and I.A.No.1108/12 on the files and proceed in accordance with law and pass orders afresh, after affording sufficient opportunities to both the parties to adduce evidence and dispose the same as expeditiously as possible.
Sd/-
V.K.MOHANAN, Judge.
ami/ //True copy// P.A.to Judge Sd/-
K.HARILAL, Judge.