This is a petition filed under Article 227 of the Constitution of India seeking a direction to the court below to take up and dispose of I.A.No.2578/2009 dated 15.12.2009 whereby the petitioner has sought for a preliminary enquiry regarding the mental status of the first respondent. 2. The suit is one for partition instituted by the first respondent through his next friend, claiming that the first respondent is mentally ill.
3. The petitioner points out that he is the fourth defendant in the suit and he points out that there has already been a partition in the year 1993 and the first respondent has already got his share. Ignoring all these facts that the present suit has been filed.
4. The petitioner points out that on entering appearance he disputed the mental status of the first respondent claiming that he is mentally ill and he has to be represented by a next friend. It is pointed out that as per Order XXXII Rule 15 of the Code of Civil Procedure an enquiry had to be made by the court concerned and the court had to be satisfied that the person was incapable of
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managing his own affairs so as to be represented by a next friend. As the enquiry is statutory mandate, it could not be avoided.
5. The petitioner points out that finding that no such enquiry has been conducted, he moved I.A.No.2578/2009 for such an enquiry as he was of the firm opinion that the first respondent does not have any mental incapacity.
6. The grievance of the petitioner is that even though that petition was filed as early as on 15.8.2009 till date it has not been taken up and disposed of. According to the learned counsel for the petitioner, until that petition is taken up and disposed of, the matter could not be proceeded with.
7. It is seen that the first respondent through his next friend had approached this Court vide O.P.(C)No.1617/2014 and without disclosing the fact that a petition for enquiry into the mental status of the first respondent is pending, seems to have obtained an order from this Court for expeditious disposal of the suit within four months from the date of production of a copy of the judgment.
8. The learned counsel appearing for the petitioner points out that the approach to this Court for expeditious disposal of the suit is a dubious method adopted by the first respondent to get over an enquiry into the mental status as per the averments contained in I.A.No.2578/2009 filed by the petitioner. It is emphasised that a
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statutory enquiry is required before the I.A. can be allowed. It is therefore prayed that the court below may be directed to take up the petition filed by the petitioner and dispose it of in accordance with law as expeditiously as possible.
9. There seems to be considerable force in the submissions made by the learned counsel for the petitioner that the court could not have decided the suit without conducting an enquiry into the mental status of the plaintiff, who is the first respondent herein, as to whether he is mentally ill so that he is unable to manage his own affairs. It is not in dispute that I.A.No.2578/2009 is pending before the court below. In the light of the pendency of that petition, it will not possible for the court below to dispose of the suit.
In the result, the petition is disposed of with a direction to the court below to take up I.A.No.2578/2009 and dispose it of in accordance with law as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the other contentions regarding maintainability of the suit is left open to be considered at a later stage.
vpv
Sd/-
P.BHAVADASAN JUDGE