IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.56869/2018 (GM-CPC) BETWEEN:
1. SURABHI JAIN M S D/O SRI. M N SUDHIR KUMAR, AGED ABOUT 27 YEARS, 2. SUPRITHA JAIN M.S.
D/O SRI M N SUDHIR KUMAR, AGED ABOUT 24 YEARS 3. SRI. M N SUDHIR KUMAR, S/O K P NAGARAJAIAH, AGED ABOUT 67 YEARS, BEING PHYSICALLY AND MENTALLY UNSOUND PERSON.
REPRESENTED BY SMT. SUNANADA S P W/O SRI. M N SUDHIR KUMAR, AGED ABOUT 61 YEARS, ALL RESIDING AT NO.318, SHIVARANJINI, 7TH CROSS, NEAR AVALAHALLI BDA PARK, GIRINAGAR, BSK 3RD STAGE, BANGALORE.
... PETITIONERS (BY SRI. T S SATISH, ADVOCATE) AND:
1. SMT PADMA W/O LATE KOMAL KUMAR, AGED ABOUT 55 YEARS, NO.1117/1, 1117/2, 2ND MAIN ROAD, VIVEKANANDA ROAD, MANDYA.
2. DEVISMITHA M.K. W/O NITHIN AGED ABOUT 30 YEARS, NO.365, EKADANTHA, 9TH CROSS, OPP. JNANADEEPTHI SCHOOL, NEAR AVALAHALLI BDA LAYOUT, GIRINAGAR, BANGALORE-85.
3. VINEETH KUMAR M.K. S/O LATE KOMAL KUMAR AGED ABOUT 29 YEARS, NO.1117/1, 1117/2, 2ND MAIN ROAD, VIVEKANANDA ROAD, MANDYA.
4. HRUDAYA KUMAR S/O K.P.NAGARAJAIAH, AGED ABOUT 69 YEARS, NO.1117/1, 1117/2, 2ND MAIN ROAD, VIVEKANANDA ROAD, MANDYA 5. SMT.SHRUTHAVANI W/O SUJAY AGED ABOUT 37 YEARS, NO.312, 3RD SANMA MARGA, 17TH MAIN ROAD, 4TH T BLOCK, JAYANAGAR, BANGALORE-41.
6. SMT.M.N.SANDHYAVATHI W/O S.P.NAGENDRA, AGED ABOUT 63 YEARS, SOURASAMPANNA, 5TH D CROSS, 2ND STAGE, GROUND FLOOR, SRI.VASAVI TEMPLE STREET, 162ND WARD, GIRINAGAR, BSK 3RD STAGE, BANGALORE-85.
7. M.N.SUNIL KUMAR S/O K.P.NAGARAJAIAH, AGED ABOUT 59 YEARS, NO.1117/1, 1117/2, 2ND MAIN ROAD, VIVEKANANDA ROAD, MANDYA 8. M.N.SHAYANA PRASAD S/O K.P.NAGARAJAIAH, AGED ABOUT 59 YEARS, NO.1117/1, 1117/2, 2ND MAIN ROAD, VIVEKANANDA ROAD, MANDYA ... RESPONDENTS (BY SRI. H B CHANDRASHEKAR, ADVOCATE FOR R4,7 & 8; R1 TO 3,5 & 6 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET ASIDE THE IMPUGNED ORDER DATED 6.7.2018 IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA DISMISSING THE INTERIM APPLICATION DATED 17.2.2018 BY THE PETITIONER NO.3 UNDER ORDER XXXII RULE 1 R/W RULE 15 OF CPC IN O.S.NO. 103/2016 AT ANNEX-A;
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the plaintiffs in a partition suit in O.S.No.103/2016 are invoking the writ jurisdiction of this Court for assailing the order dated 06.07.2018, a copy whereof is at Annexure-A, whereby the learned Principal Sr. Civil Judge, Mandya has rejected the application in I.A.No.6 filed under Order XXXII Rules 1 & 15 of CPC, 1908, wherein appointment of guardian ad litem for the 3rd petitioner herein was sought for. The contesting respondents after service of notice having entered appearance through their counsel resist the writ petition.
2. The learned counsel for the petitioner argues that there is sufficient material such as Medical Certificates and Affidavits to prima facie establish that the 3rd petitioner being a patient of acute dementia is not in a position to understand the worldly affairs at all; he cannot take any rational decisions relating to the prosecution of the suit; Smt. Sunanda.S.P. being his spouse representing him can be appointed as the guardian ad litem; this having not being done, there is error apparent on the face of the record warranting indulgence of this court. The learned counsel for the contesting respondents makes submission in justification of the impugned order.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to interfere in the matter because:
(i) the suit is for partition & separate possession; all parties are related to each other; the 3rd petitioner Sudhir Kumar is suffering from acute dementia, is established by the Medical Certificates dated 22.04.2017 and 22.09.2018 which are issued by Government Hospitals; no reason is assigned by the Court below for doubting these certificates;
(ii) the person who seeks to be appointed as a guardian ad litem of the 3rd petitioner is none other than the spouse and this is not disputed by any of the parties to the suit, who again are closely related to each other; there is no much objection from any of the parties to such appointment although formal objections are filed in the Court below; and (iii) this Court in more or less a similar case in W.P.No.27087/2019 between B.C.KOTRESH vs.
MUNIYAPPA disposed off vide judgment dated 17.07.2019 at para 3(a) has observed as under:
“3(a) under Order XXXII Rule 15 Court is empowered to appoint a guardian ad litem in the event a party to the suit is of unsound mind or is incapable of protecting his interest when suing or being sued by reason of any mental infirmity as held by the Apex Court in the case of KASTURI BAI vs. ANGOORI CHAUDHARY, AIR 2003 SC 1773; it is true that court would not appoint a guardian ad litem merely because such appointment would cause no prejudice to other party or that merely because a party prays for that; in the present case the court below having made some enquiry, has made this appointment on the basis of the medical records and the Government sanction order for payment of disability pension.”
These observations apply to the present case as well.
In the above circumstances this writ petition succeeds; the impugned order is set aside; the application filed under Order XXXII Rules 1 & 15 of CPC is favoured and Smt. Sunanda.S.P. is appointed as the guardian ad litum of 3rd petitioner Mr.M.N.Sudhir Kumar in O.S.No.103/2016; trial Court to proceed in the matter accordingly.
No costs.
Sd/- JUDGE Snb/