1. In this application filed under Order 41 Rule 2 areas with Section 515 C.P.C. the applicant has prayed that 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 for unsound mind and by the reasons of unsoundness of mind and mental infirmity and incapable of the suing and protecting his interest when suing and protecting his interest when suing without the appointment of a next friend and such the order D- 30-11-70 passed by Shri K. B. Andley Additional Rent Controller is a nullity and of no force and effect'.
2. It is further and by the applicant that he be permitted to adduce evidence in support of the contention raised in ground of the appeal proposed to be added by this application.
3. The respondent has opposed this application stating the same is not maintainable in that the question sought to be raised being one of fact involving production of the additional evidence on disputed question of fact as to the events of 1966 and even prior thereto or cannot be permitted to be pleaded at this belated stage that the respondent during the proceedings before the court below has deposed before the court and was cross examined which by it self would show the he was capable of taking care of this own interest and was not either of unsound mind or otherwise suffering from any mental infirmity.
4. 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 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 Board 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, C.P. C. (C. M. 440-J of 1972) this Court appointed Shri Shaman Lal Nijhawan, father of the respondent as his guardian-ad-litem of his son, respondent in the present appeal. The learned counsel, thereforee, submitted that if it was not a fact that the respondent was of unsound mind then Shri Shaman Lal Nijhawan, father of the respondent would not have consented to be appointed as guardian-ad-litem 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 C. P. C. 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 favor ordering the ejectment of the petitioner from the premises in dispute.
5. 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. 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.
6. With a view to appreciate the respective contentions of the parties, it would be appropriate to refer to the relevant provisions of Order 32, C. P. C., 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.'
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, C. P. C. prescribed 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 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.'
7. From a perusal of the above quoted Rules, there can be no doubt that the provisions contained in Rules 1 to 14 of Order 32, C. P. C. 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 sale 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 tot he 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 , the Court observed, at page 102.
'Order 32, Rule 2, Civil P. C., 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, : AIR1962All512 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 favor of the respondent because of his being of unsound mind is void ab initio and the respondent cannot take advantage of the said decree.
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 throughout a next friend, it was held that the decree was void ab initio. But it the instant case the fact as and circumstances are different. As already observed in and 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 form 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 form 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.
10. In Narpat Raj v. Babulal, a Division Bench of the Court relying on Sulaiman Pir Mohammad's case (supra) and Gulabchand v. Fulchand, : AIR1959Bom232 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.'
11. 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.
12. In Kanhaiya Lal v. Mr. Thomas Skinner : AIR1936All806 , 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. In that case a decree was passed in favor 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.
13. For the reasons stated above the application is without merit and is dismissed with costs.
14. Application dismissed.